Fagan v. William H. Sadlier, Inc.

Background

The parties jointly requested an amended stipulated confidentiality and protective order under Federal Rule of Civil Procedure 26(c). They represented that discovery would involve confidential documents or information whose disclosure could harm the person producing it or a third party owed a duty of confidentiality.

The court found good cause for a tailored order governing the pretrial phase of the action. The order applies to discovery materials produced by a party or nonparty, including documents, interrogatory answers, requests for admission, deposition testimony, and copies or summaries of those materials.

Confidentiality Terms

A producing party may designate only the portions of discovery material that it reasonably and in good faith believes are confidential. Examples include previously undisclosed proprietary business or financial information; business or marketing plans; personal or intimate information; medical, mental-health, or individually identifiable health information; and nonpublic family, medical, mental-health, or employment records of nonparties.

People subject to the order may not disclose designated confidential material except as the order permits. Permitted recipients include the plaintiff; participating principals or executives of the defendant; counsel and their staff; outside vendors; mediators or arbitrators; certain people identified on documents; potential witnesses; experts and consultants who sign the required acknowledgment; deposition transcription personnel; and the court and its personnel.

Confidential materials may be used only for prosecuting or defending this action and related appeals. Within 60 days after the final disposition of the action, including appeals, recipients generally must return or destroy the materials and, if requested, certify that they have done so. Counsel specifically retained for the action may keep archival copies subject to the order.

Challenges, Court Filings, and Privilege

The order permits a party to object to a confidentiality designation before trial. If the parties cannot resolve the objection, counsel must bring the dispute to the court under the court’s practices. A party seeking additional restrictions, such as attorneys’-eyes-only treatment, must follow a similar procedure.

The order does not automatically authorize filing confidential materials under seal. A party seeking continued sealing must file an application and supporting declaration explaining on a particularized basis why sealing is justified. Public redacted copies generally must be filed through the court’s electronic filing system, with unredacted copies filed under seal when required by the court’s rules.

The order also states that it does not waive objections to discovery, waive privilege, decide admissibility, or require evidence to remain sealed at trial. If privileged or attorney-work-product material is inadvertently disclosed despite reasonable preventive steps, the disclosure alone does not waive the claimed protection. The receiving party must return or destroy the material within five business days after notice, while retaining the right to ask the court to compel production.

Ruling and Effect

Judge Analisa Torres ordered the parties and other persons with notice of the order to comply with its terms. The court expressly retained discretion to decide whether any particular discovery material should receive confidential treatment. The order addresses discovery confidentiality and related procedures; it does not resolve the merits of the lawsuit.