Trustees of the Fulton Fish Market Pension Fund v. M. Slavin & Sons, Ltd.

Nature of the Order

This was a stipulated protective order under Federal Rule of Civil Procedure 26(c), which permits courts to protect people from harm or undue burden during discovery. The parties, through counsel, agreed to the order's terms. The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the case.

Confidentiality Designations

The order allows a producing person to designate material as confidential only when public disclosure is restricted by law or would harm the producing person's or a third party's business, commercial, financial, or personal interests. Examples include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; and personal or intimate information.

The producing person or counsel must clearly mark confidential portions of discovery material and provide a version with the confidential information redacted for future public use. Deposition testimony may be designated during the deposition or within 30 days afterward by identifying the specific pages, lines, or exhibits. During that 30-day period, the entire deposition transcript is treated as confidential. Material produced without a designation may be designated later, before trial, by written notice to prior recipients.

Permitted Disclosures and Use

People subject to the order generally may not disclose designated confidential discovery material. Permitted recipients include the parties and certain insurers and their counsel; counsel and their litigation staff; litigation-service providers; mediators or arbitrators who sign a nondisclosure agreement; a document's author or addressee; potential witnesses who sign a nondisclosure agreement; experts and other specialized advisers who sign such an agreement; deposition transcription staff; and the court and its personnel.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, or competitive purposes. The order does not restrict a person's use of that person's own documents or information, or information obtained independently of this discovery process.

Challenges, Subpoenas, and Court Filings

A party may object to a confidentiality designation or request additional disclosure limits, including an attorneys'-eyes-only restriction in extraordinary circumstances. If the parties cannot resolve the issue, counsel must present it to the court under the court's individual practices.

If discovery material is subject to a third party's confidentiality obligation, the receiving party must notify that third party within two business days of a request. If no protective order or other relief is sought within 21 days after notice, the receiving party must produce the responsive information, while preserving an appropriate confidentiality designation.

The order requires compliance with the court's individual practices and the Southern District of New York's local rules before filing redacted material or material under seal. It does not create a presumption that designated material may be filed under seal. A party filing papers under seal must also publicly file a version redacting only the confidential material itself. The order warns that the court is unlikely to seal material introduced at trial or used with a motion for summary judgment.

Personal Information, Enforcement, and the Court's Limitation

Recipients must securely maintain personally identifying information, such as Social Security numbers, financial account numbers, and passwords. A recipient experiencing a data breach must immediately notify the producing person and cooperate in addressing the breach. Within 30 days after final disposition of the action, confidential discovery material must be returned or, with the producing person's permission, destroyed. Willful violations may result in contempt of court, and the court retained jurisdiction as needed to enforce the order or impose contempt sanctions.

Judge Jesse M. Furman ordered the protective arrangement on December 20, 2022. The order states that the court had not reviewed the documents and therefore made no finding that any document was actually confidential. That determination, if needed, would occur through document-by-document review under the court's procedures and the presumption favoring public access to judicial documents. The court also stated that it was not ordering any provision that purported to allow filing documents under seal without a prior court order.