Chomsky v. ProTravel International LLC
- Paul Gardephe
- 1:21-cv-04857
- U.S. District Court · Southern District of New York
- 9
In Chomsky v. ProTravel International, Judge Gardephe entered a confidentiality order governing discovery and restricting use and disclosure of designated information.
The order binds the parties, their corporate parents, successors and assigns, representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice of the order. It also governs people who receive designated confidential discovery material.
What happened
In Chomsky v. ProTravel International LLC, the parties asked the court to approve an agreement protecting nonpublic and competitively sensitive information disclosed during discovery. The parties agreed to the order's terms.
The order allows certain financial, business, ownership, personal, and other court-approved information to be marked confidential. It limits disclosure to specified people, requires nondisclosure agreements for some recipients, and allows confidential material to be used only to prosecute or defend this case and related appeals.
The court found good cause and entered the protective order. Judge Gardephe also stated that confidentiality designations do not automatically justify sealing court filings and that recipients generally must return or destroy confidential material within 60 days after the case, including appeals, ends.
The detailed version
- Chomsky v. ProTravel International LLC · No. 1:21-cv-04857
- Paul Gardephe
- Jan. 31, 2022
Background
The parties, through counsel, asked the Southern District of New York to issue a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be produced during discovery. The parties stipulated to the proposed terms, and the court found good cause for an appropriately limited confidentiality order covering the pretrial phase of the case.
Confidential Information
The order permits a producing party to designate as confidential only material that it reasonably and in good faith believes includes 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; or another category that the court later gives confidential status.
The producing party or its counsel must clearly mark confidential portions of discovery material and provide a redacted copy for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. A party may also correct an earlier failure to designate material by notifying prior recipients in writing.
Disclosure and Use Restrictions
People subject to the order may disclose confidential discovery material only to specified recipients, including the parties, their insurers and insurance counsel, counsel and litigation-support personnel, outside service providers, mediators or arbitrators, certain people identified in documents, potential witnesses, experts and advisers, deposition reporters, and the court. Mediators, arbitrators, potential witnesses, experts, and certain advisers must first receive the order and sign a nondisclosure agreement.
Confidential material may be used only for prosecuting or defending this case and related appeals. It may not be used for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privilege, or other protection, and it does not decide whether evidence is admissible at trial.
Court Filings and Sealing
A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. The order requires a letter brief and supporting declaration giving particularized reasons for continued sealing. The court retained discretion over whether to keep material confidential when submitted in connection with a motion or other proceeding and warned that it was unlikely to seal material introduced into evidence at trial merely because it had previously been designated confidential.
Challenges, Preservation, and Enforcement
A party may object to a confidentiality designation or request additional limits on disclosure, such as an attorneys'-eyes-only restriction, by giving written notice that explains the grounds. Unresolved disputes are to be presented to the court under its individual practices. The order also permits disclosure in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible and, if time allows, at least 10 days before disclosure.
Recipients must take reasonable precautions against unauthorized or accidental disclosure. Within 60 days after final disposition of the case, including appeals, recipients must return or, with the producing party's permission, destroy confidential material and certify that they retained no copies or other reproductions. Counsel specifically retained for the case may keep archival copies of certain case-related materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retained jurisdiction to enforce it and impose contempt sanctions.
Ruling
On January 31, 2022, Judge Paul G. Gardephe entered the stipulated confidentiality agreement and protective order. The order governs the handling of designated discovery material; it does not resolve the parties' underlying claims or defenses.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.