Nastasi & Associates, Inc. v. Bloomberg, L.P.
- Jesse Furman
- 1:20-cv-05428
- U.S. District Court · Southern District of New York
- 9
In Nastasi & Associates v. Bloomberg, Judge Furman so ordered a confidentiality agreement but barred automatic sealing, leaving confidentiality determinations to later document-specific review.
The parties to the action, nonparties that produce or receive information, their counsel, and other people permitted to access material under the confidentiality agreement are affected. The order also preserves the court’s separate review of any request to treat documents as confidential or file them under seal.
What happened
In Nastasi & Associates, Inc. v. Bloomberg, L.P., the parties submitted a confidentiality agreement covering documents and other information exchanged during the case. The agreement applies to the parties and certain nonparties that produce or receive information.
The agreement permits information to be labeled confidential when it contains sensitive commercial, private, or proprietary material. It limits use and disclosure of that information, establishes procedures for challenging confidentiality designations, protects accidentally produced privileged material, and requires the return or destruction of confidential materials after the case ends, subject to stated exceptions.
Judge Jesse Furman ordered the agreement, but stated that the court had not reviewed the materials and was making no finding that they were confidential. Judge Furman also refused to approve any provision that would allow the parties to file documents under seal without obtaining a separate court order.
The detailed version
- Nastasi & Associates, Inc. v. Bloomberg, L.P. · No. 1:20-cv-05428
- Jesse Furman
- Dec. 28, 2022
Background
The parties submitted a confidentiality agreement concerning documents and other confidential information produced or exchanged in the action. The agreement defines a “Producing Party” as a party or nonparty producing information, or asserting confidentiality, and a “Receiving Party” as a party or nonparty receiving that information.
Agreement Terms
The agreement permits a producing party to designate information as confidential if it contains sensitive or proprietary commercial information, other competitively sensitive information, or information likely to be considered private or sensitive. Designations may be made by marking documents, giving written notice, or stating the designation during a deposition.
A receiving party may challenge a designation by notifying the producing party and, if the designation is not withdrawn, asking the court to remove it. Until the court rules, the material remains confidential. Confidential information may be used only for this action and may be disclosed only to specified people, including counsel, certain experts who agree in writing to follow the agreement, deposition and trial participants, court personnel, and others authorized by the court.
The agreement also addresses inadvertently produced confidential or privileged material. After notice of an inadvertent production, the receiving party must stop examining or disclosing the material, return or destroy it as directed, and refrain from using it unless the court later authorizes its use. The agreement states that inadvertent production does not waive applicable privileges or protections. It also provides for returning or destroying confidential materials after the action concludes, subject to the agreement’s stated exceptions.
Court’s Order
The court ordered the confidentiality stipulation. It expressly stated, however, that it had not reviewed the referenced documents and therefore made no finding that any particular document was confidential. Any such finding would be made through document-by-document review under the court’s rules and the presumption favoring public access to judicial documents.
The court did not order any provision that purported to let the parties file documents under seal without a prior court order. Thus, the agreement governs the parties’ treatment of designated information, but it does not itself authorize sealing court filings.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.