Handler v. Dutchess County Community College

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The parties agreed through counsel to the order’s terms, and the court found good cause for an appropriately tailored order governing the pretrial phase of the action.

Confidentiality Rules

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing party may designate material as “Confidential” when it reasonably and in good faith believes the material includes previously undisclosed financial information, information about ownership or control of a nonpublic company, business plans or marketing plans, personal or intimate information, or another category later given confidential status by the court.

The defendant may disclose the full names, last known addresses, and other contact information of current or former student witnesses involved in the action. It may also disclose unredacted documents containing those witnesses’ names and contact information. Material disclosed under this provision is treated as confidential under the order.

The order identifies people who may receive confidential discovery material, including the parties and certain insurers, counsel and their assistants, vendors serving the litigation, mediators or arbitrators, people identified on a document as having received it, potential witnesses, experts and specialized advisers, deposition transcription services, and the court. Some recipients must first sign a nondisclosure agreement. Confidential material may be used only to prosecute or defend this action and any appeals, not for business, commercial, competitive, or unrelated litigation purposes.

Court Filings and Challenges

A party filing material under seal must publicly file a redacted version and submit an unredacted version under seal, along with a letter brief and supporting declaration providing a particularized justification for continued sealing. The order states that the court may unseal material if it cannot make the required specific findings that sealing is essential and narrowly tailored. The court retains discretion over whether to keep designated material confidential when it is submitted 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 or request additional disclosure limits, such as an attorneys’-eyes-only restriction, by written notice explaining the grounds. If the parties cannot promptly resolve the issue, counsel must bring the dispute to the court under the applicable individual practices.

Privilege and Return of Materials

If privileged or attorney-work-product material is accidentally disclosed, the disclosure does not by itself waive the protection. The receiving party must, within five business days after a claim of inadvertent disclosure, return or destroy the material and provide counsel’s certification. The producing party must then provide a privilege log within five business days of notification that the material was returned or destroyed. The receiving party may ask the court to order production, and the producing party retains the burden of establishing privilege or protection.

Within 60 days after final disposition of the action, including appeals, recipients generally must return or, with the producing party’s permission, destroy confidential discovery material and certify that they have not retained copies or other reproductions. Attorneys specifically retained for the action may keep archival copies of specified litigation materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Disposition

Judge Philip M. Halpern ordered the parties and other covered persons to comply with the stipulated confidentiality agreement and protective order. The opinion is a discovery-related procedural order and does not decide the merits of the underlying action.