Roque v. United States

Background

The parties requested a protective order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited confidentiality order governing the pretrial phase of the action. The order is identified as an amended stipulated confidentiality agreement and protective order.

What the Order Covers

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as “Subject to Protective Order” only when it reasonably and in good faith believes the material includes specified protected categories, including previously undisclosed financial information, ownership or control information concerning a nonpublic company, business or marketing plans, personal or intimate information, sensitive law-enforcement information, or another category later protected by the court.

Protected material generally may not be disclosed except as the order permits. Permitted recipients include the parties and their insurers, counsel and litigation-support personnel, vendors assisting counsel, mediators or arbitrators, certain people identified on documents, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court. Mediators, witnesses, and experts must generally sign a nondisclosure agreement before receiving protected information.

Sealing and Confidentiality Disputes

The order requires a party filing documents under seal to submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. Public redacted copies and sealed unredacted copies are required for protected court submissions. The court retains discretion over whether to give confidential treatment to protected material filed in connection with a motion or other proceeding and states that it is unlikely to seal material introduced into evidence at trial.

A party may object to a confidentiality designation before trial. If the parties cannot resolve the dispute promptly, they must bring it to the court under the judge’s individual practices. A party may also request additional disclosure limits, such as an attorneys’-eyes-only designation, using the same process.

Privileges, Use, and Enforcement

Protected discovery material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or unrelated litigation purposes. The order does not waive discovery objections or privileges and does not decide whether any evidence will be admissible at trial.

If privileged or work-product-protected information is inadvertently disclosed, the disclosure does not waive the protection under the order. After receiving notice, the receiving party must return or destroy the information within five business days and provide a certification. The producing party must then provide a privilege log, while the receiving party may ask the court to compel production. The producing party retains the burden of establishing the information’s privileged or protected status.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy protected material and certify that they retained 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 to enforce it and impose contempt sanctions. Judge Philip M. Halpern signed the order as “SO ORDERED.”