Riverkeeper, Inc. v. State Contracting Corp of NY

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). A protective order sets rules for handling information exchanged during discovery. The parties sought protection for nonpublic and competitively sensitive information that might be disclosed in this action. The court found good cause for issuing a tailored order governing the pretrial phase.

The defendants are identified in the caption as State Contracting Corp. of NY, doing business as Capital Industries Corp., and George McGuire.

Terms of the Order

The order covers discovery material designated as confidential. A producing party may designate only material that it reasonably and in good faith believes contains specified protected information, including previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, or marketing plans; personal or intimate information; or another category that the court later gives confidential status.

The producing party must clearly mark confidential material and generally provide a version with the confidential information redacted for future public use. Deposition testimony and exhibits may be designated during a deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A party may also correct an earlier failure to designate material by giving written notice and providing replacement versions within two business days.

Confidential material may be disclosed only to the people and entities listed in the order. These include the parties and their insurers; counsel and their litigation-support staff; outside vendors working on the case; certain mediators or arbitrators; people identified as authors or recipients of a document; potential witnesses; experts and other specialized advisers; deposition transcribers; and the court and its personnel. Certain witnesses, experts, mediators, and arbitrators must first receive the order and sign the required nondisclosure agreement.

Recipients may use confidential material only to prosecute or defend this action and any appeals, not for another purpose or litigation. They must take reasonable precautions against unauthorized or accidental disclosure. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy the material and certify that they retained no copies or reproductions. Counsel specifically retained for the action may keep archival copies of specified case materials, which remain subject to the order.

Challenges, Court Filings, and Enforcement

The order does not waive objections to discovery, privileges, or other protections, and it does not decide whether any material is admissible at trial. The court also stated that it had not made a finding that any designated material was actually confidential and retained discretion over whether to give material confidential treatment.

If confidential material is filed with the court, the parties must publicly file a redacted version and file the unredacted version under seal. A party seeking sealing must submit an application and supporting declaration providing a particularized justification. The order warns that the court may be unlikely to seal material introduced at trial.

A party may object to a confidentiality designation or request additional disclosure limits by written notice. If the parties cannot resolve the issue, they must bring the dispute to the court under the applicable practice rules. The order also permits production in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible.

The order binds the covered persons after the litigation ends, and the court retains jurisdiction as necessary to enforce the order or impose contempt sanctions. Judge Cathy Seibel therefore entered the stipulated confidentiality agreement and protective order; the order addressed discovery handling and did not resolve the merits of the underlying case.