Gerlis v. New York State Department of Health

Nature of the Order

This was a stipulated confidentiality and protective order under Federal Rule of Civil Procedure 26(c). Sean Gerlis and the New York State Department of Health, through counsel, agreed to the proposed terms. Judge Philip M. Halpern found good cause for an appropriately tailored order governing the pretrial discovery phase. The opinion does not address the merits of the underlying dispute.

Confidentiality Designations

The producing party may designate only portions of discovery material that it reasonably and in good faith believes contain specified types of information, including previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, or marketing plans; personal or intimate information about an individual; or another category that the court later grants confidential status.

The order establishes procedures for marking confidential material and producing redacted copies for public use. Deposition testimony 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 to specified people, including the parties, counsel, insurers and their counsel, litigation-support vendors, mediators or arbitrators, certain people identified in documents, possible witnesses, experts, specialized advisers, deposition stenographers, and the court. Witnesses, experts, mediators, and arbitrators generally must first receive the order and sign a nondisclosure agreement.

Recipients may use confidential material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence will be admissible at trial.

Court Filings and Challenges

A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. A party seeking to file under seal must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether material submitted in connection with a motion or other proceeding receives confidential treatment and warns that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys’-eyes-only treatment, before trial. If the parties cannot promptly resolve the issue, counsel must present it to the court under the court’s individual practices.

Privilege, Return of Material, and Enforcement

If privileged or protected information is accidentally disclosed, the disclosure does not itself waive the privilege or protection. After notice, the receiving party must return or destroy the information within five business days and provide counsel’s certification. The producing party must then provide a privilege log, and the receiving party may ask the court to compel production. The producing party bears the burden of establishing that the information is privileged or protected.

Within 60 days after final disposition of the action, including appeals, recipients must return confidential discovery material or destroy it with the producing party’s permission and certify that they have kept no copies or summaries. Counsel specifically retained for the action may keep archival copies of certain case-related materials, but those copies remain covered by the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.