Welch v. City of Peekskill

Background

The parties jointly requested a 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 tailored confidentiality order governing the pretrial phase of the action.

Confidentiality designations

The order allows a producing party—the party disclosing discovery material—to designate only portions of material that it reasonably and in good faith believes include certain previously undisclosed information. Listed categories include financial information, information about ownership or control of a nonpublic company, business or marketing plans, and personal or intimate information about an individual. The court may later give confidential status to other categories.

The order establishes procedures for marking confidential material and producing a redacted copy for public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. A party may also later designate material that was previously produced without a confidentiality designation by notifying prior recipients in writing.

Permitted disclosures and use

Confidential discovery material may be disclosed to specified people, including the parties, insurers, counsel, certain vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts, deposition transcribers, and the court. Mediators, arbitrators, witnesses, and experts must first receive the order and sign a nondisclosure agreement. Recipients must use the material only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or unrelated litigation purposes.

The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence will be admissible at trial.

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 states that a party seeking continued sealing must provide a particularized justification and warns that the court may unseal documents if the required findings are not established. The court retains discretion over whether to keep confidential material confidential when submitted in connection with a motion or other proceeding, and it indicates that material introduced at trial is unlikely to remain sealed.

Parties may challenge confidentiality designations or request additional disclosure limits, such as attorneys’ eyes only treatment, by giving written notice explaining the grounds. Unresolved disputes are to be presented to the court under its individual practices.

Privilege and end of the order

If privileged or protected information is accidentally disclosed, the disclosure does not itself waive the privilege or protection. The receiving party must return or destroy the information within five business days after receiving notice and provide a certification. The producing party must then provide a privilege log, and the receiving party may ask the court to compel production. The producing party retains the burden of establishing that the information is privileged or protected.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential discovery material and certify that they have not retained copies or other reproductions. Counsel specifically retained for the action may keep archival copies of specified case-related materials, which remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose sanctions for contempt.