MA Mortenson Company v. Zurich American Insurance Company

Background

The document is a stipulated confidentiality and protective order. It identifies two actions: Polcom USA, LLC v. Affiliated FM Insurance Company and Zurich American Insurance Company, No. 1:20-cv-9206 (NRB), and M. A. Mortenson Company v. Zurich American Insurance Company, No. 1:22-cv-0092 (NRB). The stipulation was made by Polcom, Mortenson, Affiliated FM, and Zurich through their respective attorneys. The order governs documents, electronically stored information, deposition testimony, discovery responses, exhibits, and other materials exchanged in the litigation.

Confidential Material

A producing party may designate material as “Confidential” if it contains or reflects trade secrets; proprietary, commercial, financial, technical, or competitively sensitive information; personal or private information; information received in confidence; or information the party in good faith believes is legally entitled to protection. Publicly available information, information already properly known to the receiving party, and information lawfully obtained from another source without a confidentiality obligation are excluded.

The order sets procedures for designating deposition testimony and exhibits, including a 15-calendar-day period after receipt of the final transcript, shortened to three business days when an upcoming hearing requires an earlier designation. Confidential material may be used only for the litigation and generally may be disclosed only to specified recipients, including the parties and their counsel, qualifying personnel and advisers, administrators, retained experts and consultants who sign a written agreement to be bound, the court, mediators or arbitrators, certain witnesses and deponents, litigation vendors, document custodians, certain insurers or reinsurers, auditors, and regulatory authorities when required. Disclosure to other people requires written consent or a court order.

The order does not automatically protect every disclosure and does not automatically permit filing information under seal. A party seeking to file confidential material with the court must seek to file it under seal. The order also preserves objections to the admissibility of evidence and to discovery.

Challenges and Inadvertent Disclosures

A party challenging a confidentiality designation must provide a written objection describing the grounds within 14 days. The designating party has 14 days to respond, after which the parties must confer in good faith. If they cannot resolve the dispute, the party supporting the designation must present it to the court. The order also permits correction of an inadvertently omitted confidentiality designation and requires parties to take steps to retrieve or prevent further disclosure of material that was later designated confidential.

If confidential material is disclosed without authorization, the person who learns of the disclosure must notify the designating party, try to retrieve the unauthorized copies, inform the recipient of the order’s terms, and ask the recipient to comply.

Privileged Information and Clawback

The order provides that producing documents or electronically stored information covered by attorney-client privilege, the work-product doctrine, consulting-expert protections, or another privilege or immunity does not waive that protection. If a producing party discovers that it may have produced privileged material, it may send a written “Clawback Letter” identifying the material and the basis for the privilege claim. The receiving party must promptly destroy or delete the identified material and copies or summaries, even if it plans to challenge the claim. The producing party must provide a redacted replacement for material that is only partly privileged within the specified period.

A receiving party may dispute the privilege claim in writing. The producing party must preserve the disputed material while the issue is resolved. If the parties cannot resolve the dispute, the producing party may ask the court to determine whether the privilege applies, including by submitting the material under seal for private court review. The order preserves the receiving party’s ability to challenge privilege and requires preservation of recalled documents for the duration of the litigation.

Duration and Enforcement

The order preserves the parties’ rights to object to discovery and to seek modification or relief from the order. After final settlement or another conclusion of the litigation, including any appeal, parties must either return the original confidential material to its source or continue to keep it confidential. The order remains effective after final termination unless modified by court order or written stipulation, and the court retains jurisdiction to enforce it.

Ruling

Judge Naomi Reice Buchwald entered the stipulated confidentiality and protective order as submitted. This was a discovery-related procedural order; the document does not resolve the underlying insurance claims or otherwise decide the merits of the dispute.