Carmody v. New York University

Background

The parties, through their lawyers, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The requested order governs documents, testimony, answers, exhibits, recordings, and other information exchanged in discovery or other proceedings in the case. The court found good cause to issue the order.

Confidential information

A party may designate or redact nonpublic material when it reasonably believes the material contains sensitive security, safety, financial, personal, medical, commercial, or proprietary business information relating to that party or its current or former patients, agents, or employees. Information that has already been publicly disclosed, or disclosed by other means without violating the order, is not confidential under the order.

Confidential material may be used only for this case, including any appeals. It may be disclosed only to specified categories of people, including the parties, counsel and their litigation employees, other counsel involved in the case, the courts and court reporters, and witnesses, experts, contractors, agents, or consultants involved in preparing for or participating in the proceedings. Before receiving confidential material, covered nonparties generally must receive a copy of the order and sign a written agreement stating that they have read it and will follow its terms.

Challenges and handling of material

The order establishes procedures for challenging a confidentiality designation. After notice and an effort to resolve the dispute informally, a party may ask the court to rule. The party supporting confidentiality bears the burden of satisfying the standards for a protective order under the federal rules and applicable case law.

The order also provides that inadvertent production of material claimed to be privileged does not automatically waive attorney-client privilege, work-product protection, physician-patient privilege, or another recognized privilege. It sets deadlines for challenging an assertion of privilege and for the producing party to ask the court to resolve a dispute.

Confidential material disclosed to the court must be filed under seal under the court's procedures, but the protective order itself does not authorize sealing. A separate order is required, with the court making the findings required by applicable law. At the end of the case, including any appeals, the parties must return or destroy confidential material within the time specified in the order, subject to limited archival retention by counsel and continuing confidentiality obligations.

Ruling

The court issued and ordered compliance with the stipulated confidentiality agreement and protective order. The order binds the parties, their representatives, agents, experts, consultants, covered third parties, and other persons with actual or constructive notice of it. Judge Lorna G. Schofield signed the order on June 14, 2022.