Chrichlow v. Sipple

Nature of the order

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). That rule allows a court to limit discovery disclosures to protect against harm, including the disclosure of confidential information. The court found good cause for an appropriately tailored order governing the pretrial phase of the action and ordered all covered persons to comply, subject to contempt sanctions.

Confidential discovery

The order permits a producing party to designate as “Confidential” only material that it reasonably and in good faith believes includes certain previously undisclosed financial information, information about ownership or control of a nonpublic company, business plans or marketing information, personal or intimate information, or another category that the court later protects. The producing party must mark the protected portions and provide a redacted copy for future public use when applicable.

The order establishes special procedures for designating deposition testimony and exhibits. A producing party may designate testimony during the deposition or identify specific pages and lines within 30 days after the deposition. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also later designate material that was previously produced without a confidentiality restriction by notifying prior recipients in writing.

Who may receive protected material

Confidential material may be disclosed only to people listed in the order, including the parties and their insurers, counsel retained for the action, assigned support staff and vendors, mediators or arbitrators, people identified on the face of a document as its author or recipient, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court. Before receiving the material, mediators, witnesses, experts, and certain other people must receive the order and sign a nondisclosure agreement.

The material may be used only to prosecute or defend this action and any 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 will be admissible at trial.

Court filings and disputes

A party filing confidential material under seal must publicly file a redacted version and submit an unredacted version under seal, along with the required courtesy copies. The order states that parties must provide a particularized justification for continued sealing and warns that the court may unseal material if the required findings are not made. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or other proceeding, and it states that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation before trial by giving written notice describing the grounds. Parties may also request additional limits, such as attorneys’-eyes-only treatment. If counsel cannot resolve a dispute, it may be presented to the court under the court’s individual practices.

Correctional and highly confidential information

The addendum addresses discovery that could affect correctional or institutional safety, security, or good order, or that is confidential under state or federal law. Unless the court permits it or defendants consent in writing, plaintiff’s counsel may not give the plaintiff a copy of confidential material, although counsel may show and discuss confidential material with the plaintiff as needed to prepare the case.

Defendants may designate as “Highly Confidential” certain Department of Corrections and Community Supervision directives or written facility policies classified as “D,” as well as material they reasonably believe could threaten correctional-facility or public safety if disclosed outside the order’s scope. Highly Confidential material is for attorneys’ eyes only and may not be shown or discussed with the plaintiff. Counsel may ask defendants to change that designation to “Confidential” if discussion with the plaintiff is needed for trial preparation.

Privilege and end of the order

If privileged or work-product material is inadvertently disclosed, the disclosure does not waive the protection. After receiving a claim of inadvertent disclosure, the recipient 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 establishing privilege or work-product protection. The recipient may ask the court to compel production, with the motion filed under seal.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they kept no copies or other reproductions. Counsel specifically retained for the case may keep an archival copy of specified case-related materials, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it or impose contempt sanctions. Judge Philip M. Halpern signed the order on May 19, 2023.