Castagna v. U.S. Army Corps of Engineers, New York District

Background

The parties jointly stipulated to a Privacy Act order and protective order under Federal Rule of Civil Procedure 26(c). They sought procedures to facilitate discovery of information that might otherwise be restricted by the Privacy Act of 1974, while protecting confidential, personal, proprietary, and similar information.

Order

The court authorized the United States, under 5 U.S.C. § 552a(b)(11), to produce information that otherwise could be withheld under the Privacy Act, to the extent disclosure is permitted by a court order. The order did not require production of information barred by other privileges, statutes, regulations, or legal authorities.

The order defines “Protected Information” broadly to include documents, records, and information containing confidential, proprietary, personal, privileged law-enforcement, or Privacy Act-protected material. A party may designate information in interrogatory answers, documents, or deposition testimony. A party challenging a designation must give written notice, after which unresolved disputes proceed under the federal rules, local rules, court practices, or other court orders governing discovery disputes.

Protected Information may be used only for this case and may not be publicly disclosed except as the order permits. The order identifies persons who may receive it, including the parties, their lawyers and support staff, witnesses, experts and consultants, court reporters, and court personnel. Certain recipients must receive a copy of the order and sign an acknowledgment before disclosure. The order also governs deposition questions involving Protected Information, proposed public filings, disclosures required by law or court order, inadvertent failures to designate material, and the return or destruction of Protected Information within 30 days after the final disposition of the action, including appeals.

Limits on the ruling

The order expressly states that it does not decide whether any particular document or category of information is protected by the Privacy Act, properly discoverable, relevant, admissible, or subject to privilege. It preserves the parties’ defenses, objections, claims, and ability to seek additional protection or disclosure.

The court also stated that the order did not authorize the parties to file documents under seal without a prior court order. If a party seeks to file Protected Information publicly, the producing party must receive at least 14 days’ advance written notice so it may ask the court to seal the material. The court noted that any confidentiality determination would be made through document-by-document review, subject to the presumption favoring public access to judicial documents.

Disposition

Judge Jesse M. Furman entered the stipulated Privacy Act Order and Protective Order. The order was an ancillary discovery ruling and did not resolve the underlying claims or decide the legal status of particular documents.