Wise v. Combe Incorporated
- Philip Halpern
- 7:22-cv-10787
- U.S. District Court · Southern District of New York
- 11
In Wise v. Combe Incorporated, Judge Halpern approved a protective order governing confidential discovery and its disclosure in the case.
The parties, their counsel, representatives, agents, experts, consultants, insurers, witnesses, vendors, third parties providing discovery, and other people with notice of the order are subject to its confidentiality and enforcement requirements.
What happened
Wise v. Combe Incorporated is a case brought by Rosalind Wise and Moona Choudry against Combe Incorporated. The parties asked the court to set rules protecting nonpublic and competitively sensitive information exchanged during discovery.
The order limits disclosure of material marked confidential, permits disclosure to specified people such as the parties, lawyers, experts, witnesses, and the court, and requires certain recipients to sign nondisclosure agreements. It also sets procedures for challenging confidentiality designations, filing confidential material with the court, handling accidentally disclosed legally protected information, and returning or destroying confidential material after the case ends.
Judge Philip M. Halpern found good cause for the agreement and ordered the parties and other covered people to follow it. The order governs the pretrial phase, survives the end of the litigation, and allows the court to enforce its terms and punish contempt.
The detailed version
- Wise v. Combe Incorporated · No. 7:22-cv-10787
- Philip Halpern
- May 30, 2023
Background
The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The request concerned nonpublic and competitively sensitive information that might be disclosed during discovery. The court stated that it found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the case.
Protective-order terms
The order allows a producing party to mark only material that it reasonably and in good faith believes is confidential. Listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, and marketing plans; personal or intimate information; trade secrets and other confidential commercial information; and any other category the court later protects.
People covered by the order may not disclose designated confidential discovery material except as the order permits. Permitted recipients include the parties and certain insurers; counsel and their litigation staff; outside vendors; mediators and arbitrators; people identified in a document; potential witnesses; experts and other specialized advisers; deposition transcribers; and the court. Witnesses, mediators, arbitrators, experts, and specialized advisers generally must first receive the order and sign the required nondisclosure agreement.
The order establishes procedures for designating deposition testimony and exhibits, correcting an earlier failure to designate material, objecting to confidentiality designations, and requesting additional limits such as attorneys'-eyes-only treatment. Confidential material may be used only to prosecute or defend this case and any appeals, not for business, competitive, or unrelated litigation purposes.
Court filings, privilege, and enforcement
A party filing confidential material with the court must publicly file a redacted version and file the unredacted version under seal. The order states that a party seeking to keep material sealed must submit a particularized justification and warns that the court may unseal material when the required findings are not established. The court retains discretion over confidential treatment of material submitted in connection with motions and is unlikely to keep material confidential when it is introduced at trial.
If a party accidentally discloses material protected by attorney-client privilege or the work-product doctrine, the disclosure does not automatically waive that protection under the order. The receiving party generally must return or destroy the material within five business days of notice, while the producing party must then provide a privilege log. The receiving party may ask the court to order production, and the producing party retains the burden of establishing the material's protected status.
Within 60 days after final disposition of the case, including appeals, recipients must return or, with permission, destroy confidential discovery material and certify that they retained no copies or reproductions. Specified litigation attorneys may keep archival copies of certain case records and work product, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.
Ruling
Judge Philip M. Halpern approved and ordered the stipulated confidentiality agreement and protective order. The opinion addresses discovery confidentiality and does not decide the underlying claims or defenses.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.