Negro v. AmTrust North America, Inc.

Background

Paula Negro and AmTrust North America, Inc. stipulated to, or agreed on, a protective order for information exchanged during discovery. The order covers documents, discovery responses, deposition testimony and exhibits, and information directly derived from those materials.

Protective-order terms

A party may designate material as “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” after making a good-faith determination that it contains information protected by statute or information that should be protected as confidential personal, medical, psychiatric, personnel, trade-secret, or sensitive commercial information. Public records and publicly available information may not be designated confidential under the order.

Confidential material may be used only to prepare for and conduct this action, including any appeal. Disclosure is limited to counsel and their relevant employees or agents, the parties and their employees, court reporters and recorders, and consultants, investigators, or experts who complete the required acknowledgment. Other people may receive the material only with the producing party’s written consent or a court order and generally must sign the acknowledgment agreeing to be bound.

The order requires reasonable measures to prevent unauthorized disclosure, provides procedures for challenging a confidentiality designation, and addresses inadvertent disclosure under Federal Rule of Evidence 502. It also requires the return or permitted destruction of confidential documents after dismissal or final judgment not subject to further appeal, subject to stated exceptions. The order remains in effect after the case ends unless otherwise agreed or ordered.

Sealing and public access

The order emphasizes the presumption in favor of open federal judicial proceedings. It states that the protective order is not blanket permission to file documents under seal. Unless a statute or separate court order applies, documents may not be filed under seal; only confidential portions of relevant documents may be sealed. A party seeking to file confidential material in a brief, memorandum, or pleading must follow the specified procedures, including filing a redacted public version and seeking permission for an unredacted sealed version when necessary.

The order also states that materials subject to confidentiality during discovery or motion practice do not automatically remain protected if they are used at a hearing, argument, or trial. Hearings, arguments, and trials are public unless the court orders otherwise.

What the court decided

The court entered the stipulated protective order to govern the parties and other persons covered by its terms. At the same time, the court stated that it did not make a document-by-document determination that designated materials were confidential or protected under the federal discovery rules. The court also stated that it did not approve any provision purporting to authorize sealing without a prior court order. The Clerk of Court was directed to terminate ECF No. 34.