Zohar CDO 2003-1, Ltd. v. Patriarch Partners, LLC

Nature of the Order

The court entered a stipulated protective order governing the exchange and use of confidential discovery materials during the pretrial phase of the action. The stipulation was between the defendants, counterclaimants, and third-party plaintiffs, on one side, and U.S. Bank, N.A., on the other. The order applies to people subject to it, including the parties, attorneys, representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice.

Confidentiality Rules

A person receiving discovery material designated “Confidential” generally may not disclose it except as the order permits. A producing person may designate material containing nonpublic business, commercial, financial, or personal information as confidential when disclosure is restricted by law or would likely seriously harm protected interests or violate privacy or confidentiality obligations. The order describes how to designate ordinary discovery material, deposition transcripts, exhibits, and material that was initially produced without a confidentiality designation.

Confidential material may be disclosed to specified people, including the parties, their insurers and insurance counsel, counsel and litigation-support personnel, mediators or arbitrators, document authors and recipients, certain witnesses, experts and consultants, deposition personnel, and the court. Witnesses, experts, consultants, mediators, and arbitrators generally 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, or competitive purposes.

Challenges, Court Filings, and Personal Information

The order allows objections to confidentiality designations and requests for additional limits on disclosure to be brought before the court if the parties cannot resolve them. A document cannot be filed under seal without a further court order addressing the specific material. An application to seal must address the applicable legal standards, including the standard discussed in Lugosch v. Pyramid Co. of Onondaga. Parties filing sealed papers must also publicly file a redacted version, subject to the order’s requirements.

People receiving personally identifying information must keep it secure and confidential and must promptly notify the producing person of a data breach. The order also provides procedures for inadvertently disclosed material claimed to be protected by attorney-client privilege or attorney work-product protection, including return or destruction, a privilege log, and any motion to compel being filed under seal.

Duration and Disposition

The protective order survives termination of the litigation. Within 30 days after final disposition, confidential discovery material must generally be returned to the producing person or destroyed, except as necessary for record retention. During the action, the court retains jurisdiction over people subject to the order as necessary to enforce its obligations or impose contempt sanctions. Judge P. Kevin Castel signed and entered the order on September 2, 2022. The opinion is a discovery-related procedural order and does not decide the underlying claims or defenses.