Simply Clean Air & Water Inc. v. The Rogosin Institute, Inc.
- Jesse Furman
- 1:23-cv-00699
- U.S. District Court · Southern District of New York
- 17
In Simply Clean Air & Water v. The Rogosin Institute, Judge Furman approved discovery-confidentiality rules but made no finding that any document was confidential.
Simply Clean Air & Water, Inc., The Rogosin Institute, Inc., third parties producing discovery, and the lawyers, staff, experts, vendors, witnesses, and other authorized recipients who handle protected discovery materials.
What happened
Simply Clean Air & Water, Inc. and The Rogosin Institute, Inc. agreed to rules for handling potentially private, proprietary, or commercially sensitive information exchanged during discovery in this case. The provided order does not describe the underlying claims.
The order allows parties and third parties to label discovery materials either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY.” It limits how those materials may be used, who may see them, and how they must be handled, including procedures for challenging designations and responding to accidental disclosure of legally protected material.
Judge Furman entered the protective order on April 27, 2023. He stated that the court had not reviewed the documents and therefore made no finding that they were confidential. The order also does not automatically authorize filing documents under seal; a party must obtain the court’s permission before doing so.
The detailed version
- Simply Clean Air & Water Inc. v. The Rogosin Institute, Inc. · No. 1:23-cv-00699
- Jesse Furman
- Apr. 27, 2023
Background
The parties jointly submitted a proposed confidentiality stipulation and protective order concerning information exchanged in discovery. They stated that discovery could include confidential, proprietary, commercially sensitive, or private information belonging to the parties or third parties. The text provided does not identify the underlying claims or resolve any merits issue.
Protective-order requirements
The order applies to discovery materials produced in response to requests, subpoenas, depositions, and other discovery, including materials voluntarily produced or produced under a rule or court order. A producing party or third party may designate material as “CONFIDENTIAL” if it reasonably believes the material contains nonpublic business, commercial, financial, proprietary, or personal information, or information protected by privacy interests. “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” is reserved for highly sensitive nonpublic technical, business, commercial, financial, proprietary, research, or privacy-related information that could cause substantial competitive or other harm.
Confidential material may be used only to prosecute, defend, appeal, or settle this case and related appeals. The order limits access to specified people, including outside lawyers and their staff, the court, jurors, court reporters, certain experts and consultants, litigation vendors, and certain authors, recipients, employees, officers, directors, agents, and corporate representatives. Many people who receive protected material must first sign a declaration agreeing to follow the order.
The order establishes procedures for late designations, challenges to confidentiality labels, deposition designations, and accidental production of material protected by attorney-client privilege or work-product protection. If a producing party promptly gives written notice of an inadvertent privileged disclosure, the receiving party must return or destroy the material within five business days, subject to the order’s procedures for seeking court review. The order also requires reasonable steps to address unauthorized disclosure and generally requires return or destruction of protected materials within 90 days after final disposition, subject to specified exceptions for outside counsel.
Court’s action and limits
Judge Furman entered the stipulated protective order. The court expressly stated that it had not reviewed the documents and therefore made no finding that they were confidential. Confidentiality designations may later be challenged, and the court may decide confidentiality on a document-by-document basis while applying the presumption favoring public access to judicial documents. The court did not approve any provision that would let the parties file documents under seal without a prior court order. The confidentiality obligations and the court’s authority to resolve disputes under the order continue after the case ends unless the court orders otherwise.
Read the full 17-page opinion on CourtListener, the free public archive maintained by the Free Law Project.