Macalou v. First Unum Life Insurance Company

Background

The parties in Macalou v. First Unum Life Insurance Company 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. Through their respective counsel, the parties agreed to the order’s terms. Judge P. Kevin Castel found good cause for issuing a tailored confidentiality order for the pretrial phase of the action.

Terms of the Order

The order defines confidential materials as documents, information, testimony, or tangible items designated confidential by the producing party. A designation must be based on a reasonable, good-faith belief that the material is confidential and entitled to protection under Rule 26(c). The order covers designated materials, copies, related deposition testimony and exhibits, filings that discuss the materials, and information contained in or derived from them.

Confidential materials may be used only for preparing for and conducting this action, including appeals and retrials. They may not be used for business, governmental, commercial, administrative, arbitration, or other judicial purposes. Disclosure is limited to the parties, court personnel, counsel, counsel’s assisting employees, actual or potential witnesses, and outside consultants or experts retained to assist with the case. Certain recipients must read the order and sign a written agreement to be bound by it before receiving access.

The order provides special procedures for depositions. Confidential exhibits must be separately sealed, and a party may designate portions of a deposition transcript or its exhibits as confidential within 30 days after receiving the transcript. Until that period expires, the entire transcript and its exhibits are treated as confidential. If no timely designation is made, the deposition testimony and exhibits are not treated as confidential under the order.

The order also states that a confidential designation does not automatically permit filing material under seal. A party must obtain a further court order addressing the specific material or portions to be sealed and must support the request with an affidavit or affidavits and a legal memorandum addressing the applicable sealing standards, including the standards discussed in Lugosch v. Pyramid Co. of Onondaga. The order preserves the parties’ rights under the rule governing certain personal information in court filings.

A party challenging a confidentiality designation must notify the designating party in writing or by email within 30 days after receiving the material and identify the challenged material. The designating party then must seek a protective order within 14 days after receiving the challenge. The designating party bears the burden of showing that the material qualifies for protection. The parties must confer before bringing a confidentiality dispute to the court.

The order provides that inadvertent production of privileged or work-product-protected material does not waive the protection in this case or another federal or state proceeding, to the maximum extent allowed by Federal Rule of Evidence 502(d). The confidentiality obligations continue after the action ends. Within 30 days after termination of the action, including appeals, the parties must return the confidential materials and copies to the producing party unless the parties or producing party agree in writing to destruction. The order does not establish that any material is or is not confidential, admissible, or part of an administrative record.

Disposition

Judge P. Kevin Castel entered the stipulated confidentiality agreement and protective order. The order governs the handling of designated confidential materials and gives the court continuing authority to enforce the order or impose contempt sanctions when necessary. It does not resolve the merits of the underlying action.