Browne v. State of New York
- Philip Halpern
- 7:21-cv-05240
- U.S. District Court · Southern District of New York
- 13
Browne v. New York State Department of Correctional Services and Community Supervision: Judge Halpern issued a protective order limiting use and disclosure of confidential discovery.
The plaintiffs, the defendant, their counsel and representatives, experts, consultants, witnesses, vendors, mediators or arbitrators, third parties producing discovery, and others with notice of the order are subject to its confidentiality and use restrictions.
What happened
In Roberto Browne and Jaden. Parker v. New York State Department of Correctional Services and Community Supervision, the parties asked the court to protect nonpublic and competitively sensitive information disclosed during discovery. They agreed to the order through their lawyers.
The order limits disclosure of material marked confidential and allows its use only to prosecute or defend this case and related appeals. It permits disclosure to specified people, requires additional agreements from some recipients, sets procedures for challenging confidentiality designations, and explains how confidential material must be filed with the court. It also creates a more restrictive category called “Highly Confidential,” including certain personnel, investigative, discrimination-related, and facility-security information.
Judge Philip M. Halpern found good cause and ordered the parties and other covered people to follow the confidentiality rules. The order also addresses accidentally disclosed privileged information, return or destruction of confidential material after the case ends, and enforcement through contempt. It does not decide the underlying claims.
The detailed version
- Browne v. State of New York · No. 7:21-cv-05240
- Philip Halpern
- Mar. 30, 2022
Background
The parties jointly requested a confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). A protective order controls how information exchanged during discovery may be used and disclosed. The parties sought protection for nonpublic and competitively sensitive information that might be produced in the case. The court found good cause for an appropriately limited order governing the pretrial phase.
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, ownership or control information about a nonpublic company, business or marketing plans, personal or intimate information, or another category later approved by the court. The order provides procedures for marking documents, deposition testimony, and exhibits. A producing party may correct an earlier failure to designate material by notifying prior recipients in writing.
Confidential material may be disclosed only to specified recipients, including the parties, their insurers and counsel, counsel retained for the case, litigation vendors, mediators or arbitrators, certain people identified on a document, potential witnesses, experts and advisers, deposition transcribers, and the court. Some recipients must first receive the order and sign a nondisclosure agreement. Covered recipients may use the material only for prosecuting or defending this case and related appeals, not for business, commercial, competitive, or other litigation purposes.
Court Filings and Challenges
A party filing confidential material under seal must publicly file a redacted version and file the unredacted version under seal. The order requires a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to keep confidential material sealed when it is submitted in connection with a motion or other proceeding, and warns that material introduced at trial is unlikely to remain sealed.
Parties may object to confidentiality designations before trial. If counsel cannot resolve an objection, the dispute may be presented to the court under the judge’s individual practices. Parties may likewise request additional disclosure limits, such as an attorneys’-eyes-only designation, by stating the grounds for the request.
Additional Restrictions for the Defendant’s Materials
The order allows the New York State Department of Correctional Services and Community Supervision to designate as confidential information about employee seniority used for bid assignments and criteria for its mandatory “stick list” used for overtime assignments.
The addendum also permits the defendant to designate certain information as “Highly Confidential.” This category includes personnel files and records; personnel-related committee or individual deliberations; discrimination complaints, investigations, and reports; private information about nonparties; employment-related grievances and accommodation requests; certain investigative records; certain correctional-facility security directives; and material the defendant reasonably believes could threaten facility or public safety if disclosed outside the order’s permitted scope.
“Highly Confidential” material is for “Attorneys’ Eyes Only.” It may not be disclosed to plaintiffs or other people outside the specified categories. Plaintiffs’ counsel may not show or discuss it with plaintiffs, but counsel may ask the defendant to change the designation to “Confidential” if discussion with plaintiffs is needed to prepare the case. Unresolved disputes may be brought to the court.
Privilege, Retention, and Enforcement
The order states that it does not waive objections to discovery, privilege, or work-product protection, and does not decide whether evidence is admissible at trial. If privileged or work-product material is accidentally disclosed, the receiving party must return or destroy it within five business days after receiving notice and provide a certification. The producing party must then provide a privilege log, while retaining the burden of establishing the claim of protection. The receiving party may ask the court to order production, with the motion filed under seal.
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 kept no copies or summaries. Counsel retained for the case may keep an archival copy of specified litigation materials, which remains subject to the order. The order survives the end of the litigation, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions.
Disposition
The court issued and ordered the stipulated confidentiality agreement and protective order. The opinion contains no ruling on the merits of the parties’ underlying claims.
Read the full 13-page opinion on CourtListener, the free public archive maintained by the Free Law Project.