Fierro v. The City of New York, Department of Education

Nature of the order

The parties jointly requested a confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The court found good cause for an appropriately tailored order governing the pretrial phase of the action and ordered the parties and other covered persons to follow it.

Material that may be designated confidential

A producing party may designate as confidential only material it reasonably and in good faith believes includes:

- Previously undisclosed financial information, such as profitability reports or estimates, fees, royalty rates, payments, sales reports, and margins; - Documents and information in personnel, disciplinary, labor-relations, recruitment, or Equal Employment Opportunity files concerning non-party current or former Department of Education employees; - Application materials submitted by non-party current or former Department of Education employees; - Personal or intimate information about an individual; or - Another category that the court later gives confidential status.

The order provides procedures for marking confidential portions of documents and producing redacted copies. Deposition exhibits or transcript portions may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also later designate material that was initially produced without a confidentiality designation and must provide replacement versions within two business days after giving notice.

Limits on disclosure and use

Confidential discovery material may be disclosed only to listed categories of people, including the parties, insurers and their counsel, counsel retained for the action, certain vendors and service providers, mediators or arbitrators, document authors and recipients, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court and its personnel. Witnesses, experts, mediators, and arbitrators must first receive the order and sign the required nondisclosure agreement. Counsel must retain those signed agreements and produce them to opposing counsel at specified times.

Recipients may use confidential discovery material only to prosecute or defend this action and appeals from it, not for another purpose or litigation. The order does not restrict a party’s rights concerning its own documents or information. It also permits production in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible and, if time permits, at least 10 days before disclosure.

Court filings, objections, and enforcement

A party filing confidential discovery material or a filing that reveals it must publicly file a redacted copy and seek permission to file an unredacted copy under seal. The order states that the court has not determined that any designated material is confidential and retains discretion over whether to give it confidential treatment. It also warns that material introduced at trial is unlikely to remain sealed unless the required findings are made.

A party may object to a confidentiality designation before trial by giving written notice with particularized grounds. A party may likewise request additional disclosure limits, such as attorneys’ eyes only treatment in extraordinary circumstances. Unresolved disputes must be presented to the court under its individual practices.

Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential discovery material and certify that they have kept no copies or summaries. Attorneys specifically retained for the action may keep certain archival materials, which remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions.

Disposition and significance

Judge Woods entered the stipulated protective order. It governs discovery confidentiality and does not resolve the merits, admissibility, discovery objections, or confidentiality status of any particular material.