Carrington v. The United States of America
- Katherine Failla
- 1:22-cv-04499
- U.S. District Court · Southern District of New York
- 8
In Carrington v. United States, Judge Failla entered a joint Privacy Act and confidentiality order governing discovery materials.
Darryl Carrington, the United States, their counsel and support personnel, authorized witnesses and experts, court reporters, and others who receive information covered by the order.
What happened
Carrington v. The United States of America involves Darryl Carrington’s claims against the United States under the Federal Tort Claims Act and a federal constitutional damages theory. The parties sought an order addressing third-party information that might be protected by the Privacy Act.
The order permits the United States to disclose information covered by the Privacy Act when the Act allows disclosure by court order. It also limits how confidential information may be marked, used, shared, filed, and handled during discovery and after the case ends. The order does not decide whether any particular information is discoverable, relevant, admissible, or protected by privilege.
Judge Katherine Polk Failla found good cause and entered the Privacy Act and Protective Order. The order also includes procedures for challenging confidentiality designations, seeking permission to disclose information, and requesting that publicly filed materials be kept under seal.
The detailed version
- Carrington v. The United States of America · No. 1:22-cv-04499
- Katherine Failla
- Jan. 9, 2023
Background
Darryl Carrington asserted claims against the United States under the Federal Tort Claims Act and under Bivens v. Six Unknown Agents, a case recognizing certain damages claims against federal officials for alleged constitutional violations. During the case, Carrington sought information and records that could contain information about third parties protected by the Privacy Act of 1974.
The parties jointly requested a Privacy Act Order and Protective Order under Federal Rule of Civil Procedure 26(c). The court found good cause to enter the order to facilitate disclosure while protecting confidential information.
Order
The order authorizes the United States to produce information that might otherwise be barred from disclosure by the Privacy Act when disclosure is permitted under 5 U.S.C. § 552a(b)(11). It does not require production of information barred by another privilege, statute, regulation, or authority.
The order defines “Protected Information” broadly to include documents, records, and information containing confidential, proprietary, personal, or similar information, including information protected by the Privacy Act. A party must designate such material by marking it “Subject to Protective Order” before production. A party may challenge a designation in writing, and unresolved disputes must be handled under the applicable federal rules, local rules, court practices, or other court orders.
Protected Information may be used only for this case and may not be publicly disseminated. The order permits disclosure to specified “Qualified Persons,” including the parties and their counsel and support staff, relevant deposition witnesses, case experts and consultants, court reporters, and the court and its personnel. Other people may receive the information only if the court authorizes disclosure.
The order requires recipients to receive a copy of the order and prohibits disclosure to unauthorized people. It provides special procedures for deposition testimony involving Protected Information, public filings that contain such information, disclosures required by law or court order, and requests to seal materials. Within 30 days after the final disposition of the case, including appeals, most Qualified Persons must return or destroy the Protected Information and, if it is destroyed, provide written certification.
The order also addresses inadvertent failures to designate material, allowing the producing party to correct the designation. It states that the order does not decide whether any document or category of information is discoverable, relevant, or admissible, and does not waive any defense, objection, privilege, or other protection. It also preserves the parties’ ability to seek additional protections or disclosures and permits disclosures to governmental authorities for criminal-law enforcement or civil enforcement and regulatory proceedings.
Disposition
Judge Katherine Polk Failla entered the stipulated Privacy Act and Protective Order. The court retained jurisdiction over the order’s terms only while the litigation is pending, and the order does not bind the court or its personnel.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.