Chin v. Squire

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The court found good cause for an appropriately limited confidentiality order governing the pretrial phase of the action. The order applies to 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.

Confidential information

A producing party may designate as “Confidential” only material that it reasonably and in good faith believes includes previously undisclosed financial information; previously undisclosed information about ownership or control of a nonpublic company; previously undisclosed business, product-development, or marketing plans; personal or intimate information about an individual; or another category the court later protects. Designations generally must identify the protected portions and include a public version with confidential information redacted. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. A producing party may also make a later designation for material previously produced without restrictions.

Confidential discovery material may be disclosed only to specified recipients, including the parties and certain insurers, counsel and their staff, vendors, the court, deposition stenographers, and qualifying authors or recipients of documents. It may also be disclosed to certain mediators, arbitrators, witnesses, experts, and advisers after they receive the order and sign the required nondisclosure agreement. Recipients may use the material only to prosecute or defend this action and related appeals, not for business, competitive, commercial, or unrelated litigation purposes.

Court filings and disputes

A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. A party seeking to keep material sealed must also file a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The order states that the court may unseal material if the required specific findings are not made and that the court is unlikely to seal material introduced into evidence at trial.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys’-eyes-only treatment, before trial. If the parties cannot resolve the dispute, counsel must present it to the court under the court’s individual practices. The order also provides that inadvertent disclosure of attorney-client privileged or attorney work-product material does not waive the protection. After receiving a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days, while retaining the ability to ask the court to order production. The producing party retains the burden of establishing privilege or protection.

Highly Confidential material

The addendum permits defendants to designate certain directives and written policies issued by the New York State Department of Corrections and Community Supervision or a correctional facility as “Highly Confidential” when they are classified under the cited directive as affecting facility safety and security. Defendants may also use that designation for material they in good faith believe could threaten the safety or security of a correctional facility or the general public if disclosed outside the order’s permitted scope.

Highly Confidential material is for attorneys’ eyes only and may not be disclosed to the plaintiff. Plaintiff’s counsel may not show or discuss it with the plaintiff, but counsel may ask defendants to change the designation to “Confidential” if portions need to be discussed with the plaintiff to prepare for trial. Unresolved designation disputes may be submitted to the court.

Disposition

The court ordered the stipulated confidentiality agreement and protective order. The order requires recipients to return or, with the producing party’s permission, destroy confidential material within 60 days after final disposition of the action, including appeals, subject to a limited archival-copy exception for attorneys specifically retained for the action. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions. Judge Philip M. Halpern signed the order on April 29, 2022. The opinion does not decide the underlying claims or defenses.