Smith v. City of Peekskill

Background

Jahmar Smith brought this action against the City of Peekskill, David Rambo in his official and individual capacities, and Cornell Hammond in his official and individual capacities. The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited order covering the pretrial phase of the action.

Confidential information

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate only material that it reasonably and in good faith believes includes:

- previously undisclosed financial information; - previously undisclosed information about ownership or control of a private company; - previously undisclosed business plans, product-development information, or marketing plans; - personal or intimate information about an individual; or - another category that the court later gives confidential status.

The producing party or its counsel must clearly mark confidential portions and, for material other than deposition transcripts and exhibits, provide a version with the confidential information redacted. Deposition testimony may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A party may also correct an earlier failure to designate material before trial by notifying prior recipients in writing.

Who may receive confidential material

Disclosure is limited to people and entities listed in the order, including the parties and their insurers, counsel and support staff, outside vendors working on the case, mediators or arbitrators, certain people identified on a document, potential witnesses, experts and other specialized advisers, deposition transcription staff, and the court and its personnel. Witnesses, experts, mediators, and arbitrators covered by the order must first receive a copy of it and sign the required nondisclosure agreement. Counsel must retain those signed agreements and produce them at the specified times.

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 other litigation purposes. The order does not waive objections to discovery, attorney-client privilege, work-product protection, or objections to the later admission of evidence.

Sealing and challenges

A party filing material under seal must also publicly file a redacted version and submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or other proceeding. The order warns that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation before trial. If the parties cannot resolve the dispute promptly, counsel must present it to the court under the court’s individual practices. A party may likewise request additional disclosure limits, such as an “attorneys’ eyes only” designation, by giving written notice stating the specific grounds.

Privilege, subpoenas, and end of the case

The order provides that an inadvertent disclosure of attorney-client privileged or attorney work-product material does not waive the protection. After receiving notice of an inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide a certification. The disclosing party must then provide a privilege log within five business days, and the receiving party may ask the court to compel production.

The order does not prevent disclosure in response to a lawful subpoena or other compulsory process, but the receiving party must provide the producing party written notice as soon as reasonably possible and, when permitted, at least 10 days before disclosure. Within 60 days after final disposition, including appeals, recipients generally must return or destroy confidential material and certify that they retained no copies. Counsel specifically retained for the action may keep an archival copy of specified case-related materials, which remain subject to the order.

Ruling

The court issued the stipulated confidentiality and protective order. It made the order binding on persons subject to it, stated that violations could result in contempt sanctions, and retained jurisdiction to enforce the order after the litigation ends. Judge Philip M. Halpern signed the order on January 24, 2022.