Khan v. Board of Directors of Pentegra Defined Contribution Plan

Nature of the order

The parties, through counsel, stipulated to a protective order under Federal Rule of Civil Procedure 26(c). The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action and ordered the parties and other covered persons to follow it.

What information may be designated confidential

A producing party may designate material as confidential only when it reasonably and in good faith believes the material includes specified nonpublic information. The listed categories include 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; and any other category the court later gives confidential status.

The order explains how confidential designations must be made for discovery materials and deposition transcripts or exhibits. During the 30 days after a deposition, the entire transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing before trial.

Disclosure and use limits

Confidential discovery material may be disclosed only to specified people, including the parties and certain insurers; counsel and their litigation staff; outside vendors; mediators or arbitrators; document authors and addressees; potential witnesses; experts and other specialized consultants; deposition transcribers; and the court and its personnel. Certain recipients, including mediators, witnesses, and experts, must first receive the order and sign a nondisclosure agreement.

Recipients may use confidential discovery 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 also requires reasonable precautions against unauthorized or accidental disclosure and allows disclosure in response to lawful compulsory process, subject to notice requirements.

Court filings and challenges

A party filing confidential material under seal must also file a public redacted version and provide the required materials supporting continued sealing. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or proceeding. The order 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 in extraordinary circumstances. If the parties cannot resolve the issue, counsel must present the dispute to the court under the court’s individual practices.

Privilege and conclusion of the case

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not waive the protection under the order. The receiving party generally must return or destroy the material within five business days after receiving notice, and the producing party must then provide a privilege log. The receiving party may ask the court to compel production, while the producing party retains the burden of establishing the material’s privileged or protected status.

Within 60 days after final disposition of the action, including appeals, recipients must return or destroy confidential discovery material and certify that they have not retained copies or reproductions. Counsel specifically retained for the action may keep archival copies of certain case materials, which remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.