Ruffin v. Kirschenbaum & Phillips, P.C.

Background

Ronald Ruffin, identified in the caption as acting on behalf of himself and all others similarly situated, sued Kirschenbaum & Phillips, P.C.; LVNV Funding, LLC; Resurgent Capital Services Limited Partnership, also identified as Resurgent Capital Services LP and formerly as Alegis Group Limited Partnership; and Sherman Financial Group LLC. The parties, through counsel, agreed to a confidentiality agreement and 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.

Court’s Order

The court found good cause for an appropriately limited confidentiality order governing the pretrial phase of the case and ordered all persons subject to it to comply, subject to possible contempt sanctions. This includes the parties, their corporate parents, successors and assigns, representatives, agents, experts, consultants, third parties providing discovery, and other interested persons with actual or constructive notice of the order.

A producing party may designate only the portions of discovery material that it reasonably and in good faith believes contain previously undisclosed financial information; previously undisclosed information about ownership or control of a nonpublic company; previously undisclosed business, product-development, or marketing information; personal or intimate information about an individual; or another category that the court later protects. The order describes how to mark materials and how to designate deposition testimony and exhibits. During the 30 days after a deposition, the entire transcript must be treated as confidential, subject to the order’s designation procedures.

Confidential discovery material may be disclosed only to listed categories of recipients, including the parties and their insurers, counsel and litigation-support personnel, outside vendors, mediators or arbitrators, certain people identified on a document, possible witnesses, experts and specialized advisers, deposition stenographers, and the court and its personnel. Before disclosure to certain witnesses, experts, mediators, arbitrators, or advisers, counsel must provide the order and obtain a signed nondisclosure agreement. Recipients may use the material only to prosecute or defend this case and related appeals, not for business, commercial, competitive, or other litigation purposes.

Sealing, Privilege, and Enforcement

The order does not waive objections to discovery, privilege, or other protection, and it does not decide whether evidence is admissible at trial. A party objecting to a confidentiality designation may give written notice explaining the objection; unresolved disputes are to be presented to the court under the judge’s individual practices. Parties seeking additional limits, such as an attorneys’-eyes-only restriction, must follow a similar procedure.

A party filing confidential material with the court must publicly file a redacted version and file the unredacted version under seal, along with the required supporting materials. The order states that the court may unseal documents if the required specific findings are not made and that the court is unlikely to seal or otherwise protect confidential material introduced as evidence at trial.

If privileged or attorney-work-product material is accidentally disclosed, the disclosure does not waive the protection. After receiving notice, the receiving party generally must return or destroy the material within five business days and provide counsel’s certification. The disclosing party must then provide a privilege log within five business days, and the receiving party may ask the court to compel production. The disclosing party retains the burden of showing that the material is privileged or protected.

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. Lawyers specifically retained for the case may keep an archival copy of specified litigation materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.