De La Rosa v. Grand And Mercer Street Corp
- Rearden
- 1:22-cv-05480
- U.S. District Court · Southern District of New York
- 8
In De La Rosa v. Grand and Mercer Street Corp., Judge Rearden entered a protective order governing confidential discovery materials and their use.
The order governs the parties, their attorneys and representatives, experts, consultants, witnesses, insurers, litigation-support providers, mediators or arbitrators, third parties providing discovery, and other people with actual or constructive notice of the order.
What happened
In De La Rosa v. Grand and Mercer Street Corp. and Alexander Wang New York City LLC, the parties jointly asked the court to protect certain non-public information exchanged during discovery. They said the case would involve confidential documents whose public disclosure could cause harm.
The order allows parties and other authorized people to designate limited categories of discovery information as confidential, including certain financial information, business plans, ownership information, and personal or intimate information. It restricts disclosure and use of that material, while explaining that confidential treatment does not automatically allow documents to be filed under seal.
Judge Jennifer H. Rearden approved the stipulated protective order on April 21, 2023. The order also establishes procedures for challenging confidentiality designations, handling accidentally disclosed privileged material, protecting personal identifying information, returning or destroying confidential materials after the case, and enforcing the order through possible contempt sanctions.
The detailed version
- De La Rosa v. Grand And Mercer Street Corp · No. 1:22-cv-05480
- Rearden
- Apr. 21, 2023
Background
The parties, through their attorneys, agreed to a protective order under Federal Rule of Civil Procedure 26(c). They represented that discovery would involve confidential documents and information, and the court found good cause to issue a tailored order governing the pretrial phase of the case.
Confidentiality Designations
The order permits a producing person to designate as confidential only material whose disclosure is restricted by law or would harm business, commercial, financial, or personal interests. Listed examples include previously undisclosed financial information; information about ownership or control of a non-public company; business, product-development, or marketing plans; and personal or intimate information. The order does not provide blanket protection for all discovery responses or disclosures.
The order sets different procedures for marking ordinary discovery material and deposition transcripts. It also permits a producing person to correct an earlier failure to designate material as confidential by notifying prior recipients in writing before trial.
Who May Receive and Use Confidential Material
Recipients may disclose confidential discovery material only to specified people, including the parties; insurers and their attorneys; attorneys and their litigation staff; litigation-support vendors; mediators or arbitrators; certain document recipients; potential witnesses; experts and other specialized advisers; deposition transcription personnel; and the court and appellate courts. Several categories of recipients must first sign a non-disclosure agreement.
Confidential material may be used only to prosecute or defend this case and any appeals. It may not be used for business, commercial, competitive, or unrelated litigation purposes. The order does not restrict a person’s use of that person’s own information or information obtained independently of discovery.
Challenges, Sealing, and Subpoenas
A party may object to a confidentiality designation before trial. If the parties cannot resolve the dispute, they must bring it to the court under the judge’s individual rules. A party seeking additional restrictions, such as an attorneys’-eyes-only designation, must follow a similar process.
The order states that confidential discovery material is not automatically entitled to be filed under seal. A party seeking to seal documents must first file a letter-motion explaining the basis for sealing, and the court retains discretion over whether to give confidential treatment to material submitted in connection with a motion or proceeding. The parties must publicly file redacted versions and separately file unredacted versions under seal when required by the order. The order also provides procedures for responding to subpoenas and other compulsory process.
Privileged Material, Personal Information, and Final Disposition
An inadvertent disclosure of material claimed to be protected by attorney-client privilege or attorney work-product protection does not waive the claimed protection under the order. After receiving a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days and provide a certification. The producing party must then provide a privilege log, and the receiving party may ask the court to order production. The producing party retains the burden of establishing that the material is privileged or otherwise protected.
People who receive personally identifying information must keep it secure and confidential and promptly notify the producing person of a data breach. Within 30 days after the final disposition of the case, confidential discovery material must be returned or destroyed, unless the producing person permits destruction instead of return. Counsel specifically retained for the case may keep archival copies of certain case materials, which remain subject to the order.
Ruling
Judge Rearden ordered the parties and other people subject to the order to follow its terms. The order survives the end of the litigation, and willful violations may result in punishment for contempt of court. The order was stipulated and agreed by the parties and was signed by the court on April 21, 2023.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.