Stein v. Town Of Greenburgh

Background

The parties, through their lawyers, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The request concerned nonpublic and competitively sensitive information that might be exchanged during discovery. The court found good cause for issuing an appropriately tailored confidentiality order for the pretrial phase of the action.

What the Order Requires

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate only portions that it reasonably and in good faith believes contain specified confidential information, including previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; or another category that the court later protects.

People subject to the order generally may not disclose designated confidential material except as the order permits. Permitted recipients include the parties and their insurers, counsel and their staff, litigation vendors, mediators or arbitrators, certain persons identified in documents, potential witnesses, experts and other specialized advisers, deposition transcription services, and the court. Some recipients must first receive the order and sign a nondisclosure agreement.

The materials may be used only to prosecute or defend this action and related appeals. They may not be used for business, commercial, competitive, or unrelated litigation purposes. The order does not waive objections to discovery, attorney-client privilege, or work-product protection, and it does not decide whether evidence is admissible at trial.

Sealing and Confidentiality Disputes

A party filing confidential material with the court must publicly file a redacted version and file the unredacted version under seal. The order requires a particularized justification for continued sealing and states that the court may unseal materials if the required findings are not made. The court retains discretion over whether to keep confidential materials sealed when they are submitted in connection with a motion or other proceeding, and warns that materials introduced at trial are unlikely to remain sealed.

Parties may object to confidentiality designations or request additional disclosure limits, such as an attorneys’-eyes-only designation, before trial. If the parties cannot promptly resolve the issue, they must bring the dispute to the court under its individual practices.

Privilege and Return of Materials

The order provides that an inadvertent disclosure of material protected by attorney-client privilege or work-product protection does not waive that protection. After receiving notice of an inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide counsel’s certification. The producing party must then provide a privilege log, while the receiving party may ask the court to order production. The producing party retains the burden of establishing the material’s protected status.

Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential discovery material and certify that they kept no copies or summaries. Lawyers specifically retained for the case may keep archival copies of certain case records and work product, 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.

Disposition

Judge Philip M. Halpern entered the stipulated confidentiality and protective order. The order governs discovery handling and does not resolve the underlying claims or defenses.