New York SMSA Limited Partnership v. The Town of Bedford

Background

New York SMSA Limited Partnership, doing business as Verizon Wireless, sued the Town of Bedford, the Town of Bedford Town Board, the Town of Bedford Planning Board, and Alberto Ciraco, in his official capacity as building inspector. The parties, through their attorneys, jointly requested a protective order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that might be exchanged during discovery.

The protective order

The court entered the parties’ stipulated confidentiality agreement and protective order after finding good cause for a properly limited order governing the pretrial phase of the case. The order applies to the parties, their representatives, experts, consultants, third parties providing discovery, and others who have actual or constructive notice of it.

The order creates two categories of protected discovery material:

- Confidential information: This may include previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, personal or intimate information, and other categories the court later protects. - Highly Confidential information: This may include trade secrets and previously undisclosed confidential financial information.

People subject to the order may not disclose protected material except as the order permits. Confidential information may be shared with specified recipients, including the parties, relevant counsel and staff, service providers, certain mediators or arbitrators, document authors or recipients, potential witnesses, experts, and the court. Some recipients must first sign a nondisclosure agreement.

Highly Confidential information generally may be provided only to counsel and specified people assisting counsel, such as staff, service providers, mediators or arbitrators, experts, deposition stenographers, and the court. The parties themselves may not receive Highly Confidential information under the order, subject to the listed exceptions for document authors or recipients and other disclosures allowed by written consent or court order.

The order also provides that:

- A confidentiality designation does not waive objections to discovery, privilege, or other protections, and does not decide whether evidence is admissible at trial. - If defendants receive a request under New York’s Freedom of Information Law for protected material, they must give the plaintiff two weeks’ written notice of their intent to disclose it so the plaintiff may seek court intervention. - Parties filing protected material with the court must publicly file a redacted version and file the unredacted version under seal. The court retains discretion over whether to keep material confidential and warns that trial evidence is unlikely to remain sealed merely because it was previously designated confidential. - Parties may object to confidentiality designations or request additional disclosure limits, with unresolved disputes to be brought to the court under its individual practices. - Protected material may be used only for prosecuting or defending this action and related appeals, not for business, commercial, competitive, or other litigation purposes. - A party responding to a lawful subpoena or other compulsory process may produce protected material after giving notice to the producing party when reasonably possible and, if time permits, at least 10 days before disclosure. - An inadvertent disclosure of attorney-client privileged or attorney-work-product material does not waive the protection. The receiving party must return or destroy the material within five business days after notice, while the disclosing party must provide a privilege log; the receiving party may ask the court to compel production. - Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy protected materials and certify that they have not retained copies or summaries. Counsel retained for this action may keep certain archival case files, which remain subject to the order. - The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling and effect

The court ordered all persons covered by the order to comply with its terms, subject to contempt sanctions. The order governs discovery confidentiality and related procedures; it does not resolve the merits of New York SMSA Limited Partnership’s claims or the defendants’ defenses.