Alshalani v. Presbyterian Church USA

Nature of the order

The court entered a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The parties, through counsel, jointly requested protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored order covering the pretrial phase of the case.

Confidential information

A producing party may designate only material that it reasonably and in good faith believes includes previously undisclosed financial information, information about ownership or control of a nonpublic company, business plans or marketing information, personal or intimate information, or another category later given confidential status by the court. The order provides procedures for marking protected material and creating redacted copies. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. A producing party may also correct an earlier failure to designate material before trial by notifying prior recipients in writing.

Permitted disclosures and use

Confidential discovery material may be disclosed only to categories listed in the order, including the parties and certain insurers, counsel and their staff, litigation vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts and other specialized advisers, deposition transcription services, and the court. Witnesses, experts, mediators, and arbitrators generally must first sign a nondisclosure agreement. Recipients may use the material only to prosecute or defend this case and related appeals, not for business, competitive, commercial, or other litigation purposes.

Court filings and challenges

A party filing confidential material must publicly file a redacted version and submit the unredacted version under seal. A party seeking to keep material sealed must also provide a particularized justification, and the court retained discretion over whether to grant confidential treatment to material submitted in connection with a motion or proceeding. The order warns that material introduced at trial is unlikely to remain sealed. Parties may object to confidentiality designations or request additional restrictions, such as attorneys'-eyes-only treatment, and must bring unresolved disputes to the court under its individual practices.

Privilege and conclusion of the case

An inadvertent disclosure of material protected by attorney-client privilege or the work-product doctrine does not automatically waive that protection. The receiving party must return or destroy the material within five business days after notice, while the producing party must provide a privilege log. The receiving party may ask the court to compel production, and the producing party retains the burden of establishing privilege or protection.

Within 60 days after final disposition of the case, including appeals, recipients generally must return or destroy confidential discovery material and certify that they retained no copies or other reproductions. Counsel specifically retained for the case may keep an archival copy of certain case materials, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.