Garay v. NYC Health and Hospitals Corporation

Background

The parties sought an amended protective order under Federal Rule of Civil Procedure 26(c), which permits a court to protect parties or persons from harm or undue burden during discovery. The order refers to a standing administrative order requiring exchanges of documents and information in certain counseled employment cases. The parties had exchanged their first set of document requests and sought to protect the confidentiality of information produced in response to those requests and other discovery.

Confidentiality procedures

The order permits counsel to designate a document or information as confidential, in whole or in part, when counsel determines in good faith that the designation is necessary to protect the client’s interests. The order identifies personal identifying numbers, medical records, employment history, individual financial information, proprietary or trade-secret information, and information about an individual’s cooperation with the government as categories that are to be treated as confidential and redacted from public filings.

Confidential information may be used only in connection with this lawsuit. It generally may be disclosed only to the requesting party and counsel, necessary litigation-support employees, consultants or experts assisting with the case, and the court, including a mediator or another person with access because of a court position. Before disclosure, counsel must inform the recipient of the information’s confidential nature and the order’s restrictions and must obtain the recipient’s signed agreement to be bound by the order. The parties are to meet and confer about any production requiring an “Attorneys’ or Experts’ Eyes Only” designation.

A failure to designate information as confidential when it is first produced does not waive the right to designate it later. At the conclusion of the litigation, confidential information and copies generally must be returned to the producing party or certified as destroyed within 30 days after entry of a final judgment no longer subject to further appeal. Counsel may retain working files if those files remain protected.

Court’s ruling and limits

The court found good cause to protect the confidential nature of certain information and adopted the amended protective order. The order does not establish that any particular document is confidential, relevant, or admissible. The court stated that it had not reviewed the documents and that any confidentiality determination would occur, if necessary, through document-by-document review under the court’s rules and the presumption favoring public access to judicial documents.

The court did not approve any provision that would allow the parties to file documents under seal without a prior court order. The Clerk of Court was directed to terminate ECF No. 29. Judge Jesse Furman signed the order.