Benzing v. Tully Construction Co, Inc.
- Paul Gardephe
- 1:21-cv-05315
- U.S. District Court · Southern District of New York
- 8
In Benzing v. Tully Construction, Judge Gardephe approved a stipulated protective order governing confidential discovery.
The parties, their counsel and representatives, insurers, experts, consultants, witnesses, mediators, arbitrators, vendors, third parties providing discovery, court personnel, and other people with actual or constructive notice of the order.
What happened
Martin J. Benzing and Annastacia Benzing v. Tully Construction Co., Inc., Posillico Civil, Inc., et al. concerns the parties’ request for an order protecting nonpublic and competitively sensitive information exchanged during discovery.
The order allows parties to label limited categories of information confidential, including certain financial information, private-company ownership information, business plans, marketing plans, and personal information. It limits disclosure to specified people, requires nondisclosure agreements for certain recipients, and restricts use of the information to this case and related appeals.
The court also required public redacted filings when confidential material is filed, stated that sealing requires particularized justification, and required recipients generally to return or destroy confidential material within 60 days after the case and appeals end. Judge Paul G. Gardephe ordered the parties and other covered people to follow these requirements.
The detailed version
- Benzing v. Tully Construction Co, Inc. · No. 1:21-cv-05315
- Paul Gardephe
- Mar. 3, 2022
Background
The parties, through counsel, jointly requested a confidentiality agreement and 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 governing the pretrial phase of the case.
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; information concerning 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 protects.
The producing party must clearly mark confidential 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. During that 30-day period, the entire deposition transcript must be treated as confidential. A party may also later correct an earlier failure to designate material by notifying prior recipients in writing.
Disclosure and Use Restrictions
Confidential material may be disclosed only to categories listed in the order, including the parties and their insurers, counsel and litigation-support personnel, outside vendors, mediators or arbitrators, certain people identified in a document, potential witnesses, experts, specialized advisers, deposition transcribers, and the court. Before receiving the material, certain witnesses, experts, advisers, mediators, and arbitrators must receive the order and sign a nondisclosure agreement.
Recipients may use confidential material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order does not waive objections to discovery, privilege, or evidentiary objections, and it does not decide whether any material will be admissible at trial.
Sealing, Objections, and Enforcement
A party filing material under seal must simultaneously submit a letter brief and supporting declaration explaining specifically why continued sealing is justified. The court retains discretion over whether to treat designated material as confidential when it is submitted in connection with a motion or other proceeding. The order warns that material introduced as evidence at trial is unlikely to remain sealed.
Parties filing confidential court submissions must publicly file redacted versions and file unredacted versions under seal. A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys’-eyes-only treatment, and must state the grounds with particularity. Unresolved disputes are to be presented to the court under its individual practices.
The order also addresses subpoenas and other compulsory process, requires recipients to take precautions against unauthorized disclosure, and generally requires return or destruction of confidential material within 60 days after final disposition of the action, including appeals. Counsel specifically retained for the case may keep certain archival materials, which remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.
Disposition
Judge Paul G. Gardephe issued the stipulated confidentiality agreement and protective order and directed all persons subject to it to comply with its terms.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.