Baer v. Duff & Phelps, LLC
- 1:22-cv-00994
- U.S. District Court · Southern District of New York
- 16
Baer v. Duff & Phelps: the court entered a protective order governing confidential discovery but required separate court approval for sealing.
The plaintiffs and Duff & Phelps, LLC, as well as nonparties, counsel, experts, vendors, witnesses, and others who may receive or produce discovery covered by the protective order.
What happened
In Baer et al. v. Duff & Phelps, LLC, the parties asked the court to approve rules protecting confidential, private, financial, technical, and proprietary information exchanged during discovery.
The order limits use of protected material to prosecuting, defending, or settling this lawsuit. It explains who may receive the material, how confidentiality can be challenged, what happens after unauthorized disclosure, and how materials must be returned or destroyed after the case ends.
The court generally ordered the parties’ stipulation, but it did not decide that any particular document was confidential and did not authorize filing documents under seal without a separate court order. The court issued the order on April 18, 2023; the judge is not identified by name in the opinion.
The detailed version
- Baer v. Duff & Phelps, LLC · No. 1:22-cv-00994
- Apr. 18, 2023
Background
The parties jointly submitted a proposed stipulated protective order for discovery in this federal lawsuit. They said the case was likely to involve confidential business, personal, financial, technical, research, development, and proprietary information. The order was intended to protect qualifying information from public disclosure and from use outside this litigation.
Main Terms
The order defines confidential information as discovery material that qualifies for protection under Federal Rule of Civil Procedure 26(c). It covers documents, tangible items, testimony, transcripts, copies, excerpts, summaries, compilations, and statements that could reveal protected material.
Protected material may be used only to prosecute, defend, or try to settle the lawsuit. Unless the court orders otherwise or the designating party agrees in writing, it may be disclosed only to specified persons, including litigation counsel and their staff, necessary employees, experts who sign an agreement to follow the order, court personnel, court reporters, certain vendors and trial consultants, witnesses under specified conditions, and mutually agreed mediators or settlement officers.
The order requires designating parties to use care and to mark only material that qualifies for protection. Mass or unjustified designations may lead to sanctions. A party or nonparty may challenge a confidentiality designation, but the designating party has the burden of persuasion. The material remains protected under its designation while the challenge is pending unless the designation is withdrawn or waived.
The order also addresses inadvertent failures to designate, subpoenas or orders issued in other litigation, nonparties’ confidential information, unauthorized disclosures, and inadvertently produced privileged material. After final disposition, a receiving party generally must return or destroy protected material within 60 days of a written request and provide written certification, although counsel may retain specified archival case files subject to the continuing confidentiality obligations.
Court’s Action
The court “so ordered” the stipulation generally. It expressly stated that it had not reviewed the documents and therefore made no finding that any particular documents were confidential. Any confidentiality determination would be made, if necessary, document by document, subject to the presumption favoring public access to judicial documents.
The court also refused to so order any provision that purported to authorize filing documents under seal without a prior court order. A party seeking to seal protected material must follow the court’s specified procedures and obtain an order authorizing the sealing of the particular material. The opinion does not identify the judge by name.
Read the full 16-page opinion on CourtListener, the free public archive maintained by the Free Law Project.