Spatafora v. Town Sports International Holdings, Inc.

Background

The court issued a stipulated protective order governing discovery in the pretrial phase of the action. The court found good cause for an appropriately tailored confidentiality order. The opinion is an order about discovery protections; it does not address the merits of Carolyn Spatafora’s claims against Town Sports International Holdings, Inc.

Confidential Discovery

The order defines “Discovery Material” as information provided during discovery. A producing person may designate material as “Confidential” when it contains nonpublic business, commercial, financial, or personal information whose disclosure is restricted by law or would likely seriously harm the producing person’s interests or cause a violation of privacy or confidentiality obligations. If a confidential portion can reasonably be separated from the rest, only that portion should be designated.

The producing person or counsel may mark documents or portions of documents as confidential. Deposition testimony may be designated during the deposition or in writing within five business days after receipt of the transcript. Material previously produced without a confidentiality designation may be designated before trial if the producing person promptly gives written notice and provides replacement versions within two business days.

Who May Receive Confidential Material

People subject to the order generally may not disclose confidential discovery material except to specified categories of recipients. These include the parties; counsel and assigned support staff; people identified on the face of a document as its author, addressee, or recipient; potential witnesses who sign the required nondisclosure agreement; experts, consultants, and other specialized advisers who sign that agreement; deposition transcription and recording personnel; litigation-support services; the court and its staff; and others approved in writing by the person who designated the material confidential.

Before disclosure to a potential witness, expert, consultant, or other covered adviser, counsel must provide that person with the protective order and obtain a signed nondisclosure agreement. Counsel must retain the signed agreement and provide it to opposing counsel before the person testifies or when the case ends, whichever comes first.

Court Filings and Sealing

The order states that court records and docket sheets are presumed open to public inspection. A request to seal material must be supported by competent evidence showing that sealing is essential to preserve higher values and is narrowly tailored to serve that interest. A confidentiality designation in discovery does not create a presumption that the material may be filed under seal. The parties must follow Judge Hellerstein’s individual practices for requests to file under seal.

The order also warns that the court is unlikely to seal or otherwise give confidential treatment to discovery material introduced as evidence at trial, even if the material was designated confidential or sealed during pretrial proceedings. A person who objects to a confidentiality designation or seeks stricter limits, such as an attorneys’-eyes-only restriction, must give written notice stating the specific grounds. If the parties cannot promptly agree, affected counsel must request a joint telephone call with the court.

Inadvertently Disclosed Protected Material

If a producing person takes reasonable steps to prevent disclosure but inadvertently produces material claimed to be protected by attorney-client privilege or attorney work-product protection, the disclosure alone does not waive or forfeit the claimed protection. After a claim of inadvertent disclosure, receiving persons must return or destroy all copies within five business days and provide counsel’s certification that they did so. The producing person must then provide a privilege log within five business days after receiving notice of the return or destruction.

A motion seeking production of the material must be filed under seal and may not rely merely on the fact that the material was inadvertently produced. The producing person retains the burden of establishing that the material is privileged or protected, and the order preserves a party’s ability to request the court’s private review of the material.

Duration and Disposition

The protective order survives termination of the litigation. Within 30 days after final disposition, confidential discovery material and copies must be returned to the producing person or destroyed if the producing person permits destruction. During the case, the court retains jurisdiction over persons subject to the order as necessary to enforce its obligations or impose contempt sanctions.

Ruling

Judge Alvin K. Hellerstein signed and ordered the stipulated protective order on September 19, 2022. The order governs discovery confidentiality, access, sealing requests, inadvertent disclosure, and return or destruction of materials; it does not resolve the parties’ underlying claims.