Nunes v. NBCUniversal Media, LLC

Background

Plaintiff Devin G. Nunes and Defendant NBCUniversal Media, LLC stipulated to a protective order under Rule 26(c) of the Federal Rules of Civil Procedure. The order addresses discovery materials that may contain confidential, proprietary, private, commercially sensitive, or unpublished newsgathering information. It does not provide blanket protection for every discovery response or disclosure; protection applies only to information qualifying for confidential treatment under the order and applicable legal principles.

Confidentiality Categories and Use

The order establishes two designations: “CONFIDENTIAL” and “ATTORNEYS’ EYES ONLY.” A producing party may use the “CONFIDENTIAL” designation for information that is legally protected, proprietary, a trade secret, commercially sensitive, unpublished newsgathering information, private personal information, or other information whose disclosure would cause injury requiring protection. “ATTORNEYS’ EYES ONLY” is reserved for nonpublic business, strategic, proprietary, commercially sensitive, or similar information that disclosure to other litigants would likely harm.

Protected material may be used only to prosecute, defend, or attempt to settle this litigation. “CONFIDENTIAL” material may be disclosed to specified people, including outside and in-house counsel, certain employees, experts, witnesses during testimony, other approved persons, and the court. “ATTORNEYS’ EYES ONLY” material may be disclosed to a narrower group, including counsel, experts, other persons approved in writing by the designating party, and the court. Certain recipients must sign a nondisclosure agreement, and receiving parties must store protected material securely.

Designations and Court Filings

The order requires parties and non-parties to limit designations to specific material that qualifies for protection. Documents must be marked on each protected page; deposition testimony is temporarily treated as confidential for 30 days after receipt of the final transcript, during which the designating party must identify protected portions; and other tangible materials must be marked on their containers when practicable.

A party may challenge a confidentiality designation after giving written notice and attempting to resolve the dispute informally. If the dispute remains unresolved, the challenging party may ask the court to remove the designation after the required waiting period. The designating party bears the burden of showing that the designation deserves protection, and the material remains protected while the challenge is pending.

The order also states that inadvertent failure to designate qualifying material does not waive protection, and inadvertent production of privileged or otherwise protected material does not waive the privilege or protection. Before filing protected material publicly, the filing party must consult the designating party. A separate court order addressing the specific material is required before any document may be filed under seal.

Duration, Enforcement, and Disposition

The order survives the end of the litigation. The Southern District of New York retains jurisdiction to enforce it and may impose sanctions for violations. Within 60 days after final termination of the action, including any appeal, protected materials generally must be returned, made available for retrieval, or destroyed and certified as destroyed, subject to exceptions for certain inaccessible electronic materials and specified litigation records retained by counsel. The parties may seek modification of the order by written notice.

Ruling

Judge P. Kevin Castel entered the parties’ stipulated protective order on February 2, 2023. This order governs discovery handling and does not decide the underlying claims or defenses in Nunes v. NBCUniversal Media, LLC.