Scannapieco v. Physician Affiliate Group of New York PC

What the Court Ordered

The court entered a stipulated protective order under Federal Rule of Civil Procedure 26(c). A protective order sets rules for handling information exchanged during discovery, the pretrial process in which parties obtain information and documents from one another. The order binds the parties to treat materials as confidential when designated under its terms.

Confidential Materials

A lawyer may designate documents or information as confidential in good faith when protection is needed for proprietary information, trade secrets, or other sensitive nonpublic information. The order also specifically includes materials concerning personnel who are not plaintiffs in the action, including personnel files, salary, promotions, discipline, evaluations, investigations, disciplinary files, and certain medical, psychological, psychiatric, counseling, treatment, and early-intervention files.

Rules, regulations, and policies that do not concern a specific or identifiable employee are generally not confidential under the order unless confidentiality is needed for safety or security or is required by law. Information obtained from another source or already publicly available is not confidential merely because it is produced in the case.

Use and Disclosure

A receiving party may use confidential information only in connection with the action. Disclosure is limited to specified people when reasonably necessary for prosecuting or defending the case, including the receiving party, retained experts, deposition witnesses, consulting attorneys, certain deposition or trial witnesses, people who already knew the information, and the court or court officials.

Before disclosure to most authorized recipients, the recipient must receive a copy of the order and sign a written agreement not to use or further disclose the information except as allowed by the order. The receiving attorney must keep the signed agreement, provide a copy to the producing attorney, and maintain a disclosure log.

Personally Identifying and Privileged Information

Personally identifying information, such as Social Security numbers, financial account numbers, passwords, and information that could be used for identity theft, must be stored securely and shared only with authorized people.

The order also provides that producing privileged or attorney-work-product materials, including electronically stored information, does not waive the privilege or protection. If protected material is produced, the producing party may make a written retrieval demand. The receiving party generally must return or destroy the material within five business days, notify third parties that received it, and provide written confirmation. A receiving party may ask the court to require production if it disputes the claim, subject to the order’s limits on what the motion may disclose.

Challenges, Filing, and End of the Case

A receiving party may ask the court to remove confidential status from material, but must give the producing party notice and show by a preponderance of the evidence—that it is more likely than not—that good cause exists to remove the protection.

When filing papers that include confidential information, the receiving party must follow Judge Furman’s rules on redactions and sealed filings. The order does not permit automatic sealing. The court stated that a separate court order is required before documents may be filed under seal, and that judicial documents are presumptively open to the public.

Within 30 days after the case ends, including any appeals, confidential materials generally must be returned or destroyed, with limited retention of archival copies by attorneys specifically retained for the action. The order does not prevent the parties from seeking to use confidential materials at trial, and the court retained jurisdiction over disputes about implementing the order.

What the Court Did Not Decide

Judge Jesse M. Furman stated that the court had not reviewed the documents covered by the stipulation and therefore made no finding that any particular document was confidential. Whether a document is confidential, if disputed, will be decided through the procedures in the order and the court’s rules. The opinion is a discovery and confidentiality order, not a decision on the underlying claims.