Trivelli v. Putnam Hospital Center
- Philip Halpern
- 7:19-cv-09898-PMH
- U.S. District Court · Southern District of New York
- 10
In Trivelli v. Putnam Hospital Center, Judge Halpern approved a protective order limiting disclosure of confidential discovery during the litigation.
The parties to the action and other people subject to the order, including their lawyers, representatives, agents, experts, consultants, insurers, witnesses, vendors, mediators, arbitrators, third parties providing discovery, and others with actual or constructive notice of the order.
What happened
Trivelli v. Putnam Hospital Center involved the parties’ request for a court order protecting nonpublic and competitively sensitive information that could be exchanged during discovery.
The order allows parties to mark certain discovery materials confidential, including previously undisclosed financial information, business plans, ownership information, and personal or intimate information. Confidential materials generally may be shared only with specified people, such as the parties, lawyers, experts, witnesses, insurers, and the court, subject to additional conditions in some circumstances.
The court approved the stipulated protective order after finding good cause, and Judge Halpern restricted the use of confidential materials to this case and related appeals. The order also sets procedures for sealing filings, challenging confidentiality designations, handling accidentally disclosed privileged materials, and returning or destroying confidential materials after the litigation ends.
The detailed version
- Trivelli v. Putnam Hospital Center · No. 7:19-cv-09898-PMH
- Philip Halpern
- June 28, 2021
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, requested protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the action.
Confidentiality Designations
The producing party may designate only material that it reasonably and in good faith believes is confidential. Listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, and marketing plans; personal or intimate information about an individual; and other categories the court later determines should receive confidential treatment.
The producing party or its counsel must clearly mark confidential portions and, for most discovery materials, provide a copy for public use with the confidential information redacted. The order provides separate procedures for designating deposition testimony and exhibits. A party may also correct an earlier failure to designate material by notifying prior recipients in writing before trial.
Permitted Disclosures and Use
Confidential discovery material may be disclosed to specified recipients, including the parties and their insurers; counsel and litigation support staff; outside vendors; mediators or arbitrators; document authors and addressees; certain witnesses; experts and specialized consultants; deposition transcribers; and the court. Witnesses, experts, mediators, and arbitrators must first receive the order and sign the required 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, privilege, or other protections, and it does not decide whether evidence will be admissible at trial.
Court Filings and Challenges
A party filing confidential material under seal must publicly file a redacted version and submit the unredacted version under seal, along with the required supporting materials. The order states that the court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or other proceeding. It also warns that material introduced at trial is unlikely to remain sealed.
A party may object to a confidentiality designation in writing before trial. If the parties cannot resolve the objection, they must present the dispute to the court under the court’s individual practices. A party may likewise request additional disclosure limits, such as attorneys’-eyes-only treatment, by written notice explaining the grounds.
Privilege and Return of Materials
If privileged or attorney-work-product material is accidentally disclosed, the disclosure does not waive the protection under the order. After receiving a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days and provide a certification. The producing party must then provide a privilege log, while the receiving party may ask the court to compel production. The producing party retains the burden of establishing that the material is privileged or protected.
Within 60 days after final disposition of the action, including appeals, recipients must return or, if the producing party permits, destroy confidential discovery material and certify that they retained no copies or other reproductions. Attorneys specifically retained for the action may keep an archival copy of certain case-related 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 or impose contempt sanctions.
Disposition
Judge Philip M. Halpern ordered that the stipulated protective order govern the handling of confidential discovery in the action. This opinion does not decide the underlying claims or defenses.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.