Uttarwar v. Lazard Asset Management LLC

What the order addressed

The parties, through counsel, asked the court to approve a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The requested order governs nonpublic and competitively sensitive information that may be exchanged during discovery. The court found good cause for an appropriately limited order covering the pretrial phase of the action.

Confidentiality designations

A producing party may designate only portions of discovery material that it reasonably and in good faith believes contain specified types of information, including previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, and personal or intimate information. The order also allows a producing party to designate material as “Attorneys’ Eyes Only” when it reasonably and in good faith believes the material contains trade secrets or competitively sensitive business information whose disclosure is highly likely to cause significant business or competitive harm.

The order provides procedures for marking documents and designating deposition testimony. A producing party may also correct an earlier failure to designate material before trial by notifying prior recipients in writing.

Who may receive protected information

Confidential material may be disclosed to specified people, including the parties, their insurers, counsel, litigation vendors, certain mediators or arbitrators, document authors and recipients, potential witnesses, experts, court personnel, and others approved in writing by the producing party. Some recipients must first receive a copy of the order and sign a nondisclosure agreement.

Attorneys’ Eyes Only material has narrower permitted recipients. They include litigation counsel and their staff, specified vendors, certain mediators or arbitrators, experts and specialized advisers who sign nondisclosure agreements, the court and its personnel, deposition reporters and videographers, in-house counsel, and other people approved in writing by the producing party. The order makes violation potentially punishable as contempt.

Use, challenges, and court filings

Protected material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or unrelated litigation purposes. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence is admissible at trial.

A party may object to a confidentiality designation before trial. If the parties cannot promptly resolve the dispute, the affected counsel must bring it to the court under the judge’s individual practices. Parties filing protected material must publicly file a redacted version and file the unredacted version under seal, but the order requires a separate letter brief and supporting declaration justifying continued sealing. The court retains discretion over whether to grant confidential treatment to material submitted in connection with a motion or proceeding and stated that it is unlikely to seal material introduced at trial.

Privilege and end of the order

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not waive the protection under the order’s terms. 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, while retaining the burden of proving that the material is privileged or otherwise protected. The receiving party may ask the court to compel production, and the court may conduct a private review.

Within 60 days after final disposition of the action, including appeals, recipients must destroy protected material and certify the destruction. Lawyers specifically retained for the action may keep archival copies of specified case materials, which remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions.

Court’s clarification

Judge Furman so ordered the stipulated protective arrangement but stated that the court had not reviewed the documents covered by the parties’ designations. The order therefore made no finding that any particular documents were confidential. The court also did not automatically authorize the parties to file documents under seal without a separate court order; confidentiality and sealing remain subject to document-by-document review and the presumption favoring public access to judicial documents.