Giuffre v. Prince Andrew

Background

Virginia Giuffre and Prince Andrew jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The order was intended to facilitate the exchange of nonpublic and sensitive information during discovery while protecting legitimate confidentiality interests. The parties stipulated to the order, which was dated January 14, 2022, and the court marked it "So Ordered."

Confidentiality designations

The order defines "Discovery Material" broadly to include documents, information, and tangible things produced or disclosed during discovery. A producing party may designate material as confidential only when it reasonably and in good faith believes that the material is highly sensitive, was maintained in a confidential and nonpublic manner, and should receive protection for good cause.

The listed categories include medical, mental-health, and other health-care records; Social Security numbers; personal telephone numbers; tax returns; credit and banking information; names of alleged minor victims of sexual abuse; and extracts or summaries of those materials. The court may also give confidential status to other categories later.

The order states that the court has made no finding that any designated material is actually confidential and retains discretion to decide whether confidential treatment is appropriate. It also does not change any burden of proof, waive objections or privileges, or decide whether evidence is admissible at trial.

Disclosure limits and challenges

Recipients generally may disclose confidential discovery material only to specified people, including the parties, counsel and their litigation staff, certain vendors, mediators or arbitrators, document authors and addressees, potential witnesses, experts, deposition stenographers, and the court. Several categories of recipients must first receive the order and sign a nondisclosure agreement. The order allows a producing party to disclose its own confidential material without obtaining such an agreement from its current or former employees.

A party may object to a confidentiality designation at any time. If the parties cannot resolve the objection within 10 days, the producing party must file an appropriate motion within the prescribed period or the disputed material loses its confidential designation. The producing party bears the burden of showing good cause. The order also permits requests for additional disclosure restrictions in extraordinary circumstances.

Court filings and privileged material

A party filing confidential discovery material generally must publicly file a redacted version and submit the unredacted version under seal, along with an application and supporting declaration providing a particularized justification. The order states that documents may be unsealed if the court cannot make specific findings that sealing is essential to preserve higher values and narrowly tailored to serve that interest. An exception applies when the parties agree that particular confidential portions are both confidential and immaterial to the lawsuit.

The order provides procedures for inadvertently disclosed material that a receiving party has reason to believe is protected by attorney-client privilege, the work-product doctrine, or another privilege or immunity. The receiving party must limit review, promptly notify the producing person, and generally return or destroy the material within five business days after a claim of inadvertent disclosure, unless the claim is disputed. The producing person must then provide a privilege log, and the receiving party may ask the court to order production.

Duration and disposition

Unless the parties agree otherwise or another court orders otherwise, within 60 days after final disposition of the action, including appeals, recipients must return or destroy hard-copy confidential discovery material and certify that they have not retained copies or other reproductions. Electronic material that cannot be returned or destroyed must continue to be treated as confidential. Outside counsel may retain specified litigation files subject to continuing confidentiality obligations. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

Judge Lewis Kaplan entered the stipulated confidentiality agreement and protective order. This was a discovery-related procedural order; it did not resolve the parties’ underlying claims or determine that any particular discovery material was confidential.