Santos v. The United States of America
- Philip Halpern
- 7:21-cv-08009
- U.S. District Court · Southern District of New York
- 11
In Santos v. The United States of America, Judge Halpern entered a protective order governing confidential discovery and Privacy Act disclosures.
The order binds the parties and anyone else subject to it, including their representatives, agents, experts, consultants, third parties providing discovery, and other persons with actual or constructive notice. It governs their handling, disclosure, use, and return or destruction of confidential discovery material.
What happened
Santos v. The United States of America involves a request by all parties for rules protecting confidential and competitively sensitive information exchanged during discovery. The parties also sought authorization for disclosures that might otherwise be restricted by the Privacy Act.
The court found good cause and entered a protective order. It permits certain Privacy Act disclosures under a court order, limits confidential material to specified recipients and litigation purposes, and establishes procedures for confidentiality designations, sealing filings, objections, inadvertent privileged disclosures, and returning or destroying protected material.
Judge Halpern’s order does not decide the claims, defenses, discoverability, relevance, admissibility, or Privacy Act status of any particular material. It governs discovery and remains enforceable after the litigation ends.
The detailed version
- Santos v. The United States of America · No. 7:21-cv-08009
- Philip Halpern
- July 5, 2022
Background
The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought to protect nonpublic and competitively sensitive information that could be exchanged during discovery and to facilitate disclosures that might otherwise be restricted by the Privacy Act of 1974. The court found good cause for a tailored confidentiality order governing the pretrial phase of the action.
Order
The order authorizes the United States, under 5 U.S.C. § 552a(b)(11), to produce information that the Privacy Act would otherwise prohibit it from disclosing without first presenting a Privacy Act objection to the court. The order does not require production barred by another privilege, statute, regulation, or authority.
The order defines discovery material as information or materials produced or disclosed during discovery. A producing party may designate only portions it reasonably and in good faith believes contain specified confidential information, including previously undisclosed financial information, ownership or control information about a nonpublic company, business or marketing plans, personal or intimate information, sensitive law-enforcement information, or information protected by the Privacy Act. The order also permits the court to give confidential status to other categories later.
Confidential material may be disclosed only to listed recipients, including the parties, specified insurers and counsel, counsel and support personnel working on the case, vendors, mediators or arbitrators, certain document recipients, witnesses, experts, deposition transcription services, and the court. Mediators, arbitrators, witnesses, and experts must first receive the order and sign a nondisclosure agreement. Recipients may use confidential material only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or unrelated litigation purposes.
Sealing and challenges
A party filing material under seal must also file a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. Public filings that contain confidential material generally must include a redacted version, while the unredacted version is filed under seal. The court retains discretion over whether to maintain confidentiality for material submitted in connection with motions or other proceedings and states that it is unlikely to seal material introduced at trial.
A party may challenge a confidentiality designation or request additional disclosure limits before trial. If the parties cannot resolve the dispute, the affected counsel must present it to the court under the court’s individual practices.
Inadvertent disclosures and end of order
If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not waive the protection under the order. After receiving a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide a certification. The producing party must then provide a privilege log within five business days after notification. The receiving party may ask the court to compel production, but the motion must be filed under seal and may not rely on the inadvertent production itself as a ground for relief.
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 retained no copies or other reproductions. Specifically retained attorneys may keep archival copies of specified case materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it or impose contempt sanctions.
What the order did not decide
The order does not determine whether any particular document or category of information is protected from disclosure by the Privacy Act, discoverable, relevant, admissible, or subject to a valid objection. It also does not waive any party’s defenses, rights, objections, claims, privileges, or other protections. Judge Philip M. Halpern entered the stipulated protective and Privacy Act order on July 5, 2022.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.