U.S. Bank, National Association v. The Charitable Donor Advised Fund, L.P.
- Gregory Woods
- 1:21-cv-11059
- U.S. District Court · Southern District of New York
- 13
In U.S. Bank National Association v. The Charitable Donor Advised Fund, Judge Woods entered a protective order governing confidential discovery.
The plaintiffs, U.S. Bank National Association in its capacity as Trustee, Joshua N. Terry, and Acis Capital Management, L.P.; the defendants, The Charitable Donor Advised Fund, L.P., CLO Holdco Ltd., and NexPoint Diversified Real Estate Trust; their counsel and specified agents, recipients, witnesses, experts, vendors, and other people with actual notice of the order.
What happened
U.S. Bank National Association v. The Charitable Donor Advised Fund involved the parties’ request for an order protecting nonpublic and competitively sensitive information disclosed during discovery.
The order limits disclosure of materials labeled “Confidential” or “Highly Confidential,” allows disclosure only to specified people, and requires nondisclosure agreements for certain recipients. It also sets procedures for challenging confidentiality labels, filing protected materials with the court, handling accidentally produced privileged materials, and returning or destroying protected materials after the case and any appeals end.
Judge Gregory H. Woods found good cause and ordered the parties and other people covered by the order to follow it, with possible contempt penalties for violations. The order addressed discovery confidentiality and did not decide the parties’ underlying claims or the evidence’s admissibility.
The detailed version
- U.S. Bank, National Association v. The Charitable Donor Advised Fund, L.P. · No. 1:21-cv-11059
- Gregory Woods
- May 30, 2023
Background
The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited confidentiality order governing the pretrial phase of the action.
Confidentiality designations
The order permits a producing party to designate material “Confidential” when it reasonably and in good faith believes the material includes specified types of information, such as previously undisclosed financial information, information about ownership or control of a nonpublic company, business plans, marketing plans, personal or intimate information, or material designated confidential in another legal proceeding. The order also permits a “Highly Confidential” designation for confidential material of a private, sensitive, competitive, or proprietary nature when disclosure is substantially likely to directly injure the producing party by revealing it to people other than the receiving parties’ attorneys and their agents.
Designations generally must be made by clearly marking the protected portions and providing a public copy with confidential information redacted. The order establishes separate procedures for designating deposition testimony and exhibits. A producing party may also later designate material that was previously produced without a designation, and may designate already-produced material by written notice within 30 days after execution of the order.
Permitted disclosures and use
Confidential material may be disclosed only to specified recipients, including the parties and their in-house counsel, insurers and their counsel, counsel retained for the action, vendors working for counsel, mediators or arbitrators, certain people identified on a document, potential witnesses, experts, deposition stenographers, and the court. Highly Confidential material is subject to narrower access, generally limited to counsel, specified vendors, mediators or arbitrators, certain people identified on a document, witnesses and their counsel as needed for testimony, experts, stenographers, and the court.
Before certain recipients receive protected material, counsel must provide them with the order and obtain a signed nondisclosure agreement. Protected material may be used only to prosecute or defend this action and related appeals, not for another purpose or another litigation proceeding between the parties involving the same subject matter.
Challenges, court filings, and privileged material
The order does not waive objections to discovery requests, privileges, or protections, and it does not decide whether evidence is admissible at trial. A party may object to a confidentiality designation or request additional disclosure limits. If the parties cannot resolve the issue, they must bring it to the court under the court’s procedures.
When protected material is filed with the court, the parties generally must publicly file a redacted version and file the unredacted version under seal with an application and supporting declaration explaining why sealing is justified. The order states that the court has not decided that any material is confidential and may decline to seal material introduced at trial.
If privileged or otherwise protected material is inadvertently produced, the production does not waive the applicable privilege or protection under the order. The receiving party must stop examining or disclosing the material and, if requested, return or destroy it and refrain from using it until further court order. The producing party must provide a privilege log within seven days after asserting an inadvertent-production claim.
Disposition and effect
Within 60 days after final disposition of the action, including appeals, recipients must return or destroy protected material and certify that they have not retained copies or other reproductions. Counsel specifically retained for the action may keep archival copies of specified case materials, but those copies remain subject to the order. The order survives the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.
The order was stipulated and agreed by the parties and was ordered by Judge Gregory H. Woods on May 30, 2023. It resolved a discovery and confidentiality matter; it did not resolve the merits of the underlying dispute.
Read the full 13-page opinion on CourtListener, the free public archive maintained by the Free Law Project.