Diaz v. Bloomberg, L.P.

Background

Heidi Diaz, on behalf of herself and others similarly situated, and Bloomberg, L.P. jointly submitted a proposed confidentiality stipulation for discovery in this pending case. The parties represented that discovery was likely to include personal information, trade secrets, proprietary business information, and other sensitive material. The court found good cause for entering a tailored confidentiality order under Rule 26(c) of the Federal Rules of Civil Procedure.

Order

The court approved and ordered the parties' confidentiality procedures. A party may designate discovery material as “Confidential Information” or “Highly Confidential Information–Attorneys’ Eyes Only” when it reasonably believes the material requires protection. The latter category covers extremely sensitive information, such as medical information, bank-account information, unredacted Social Security numbers, and trade secrets, when disclosure would create a substantial risk of serious harm that less restrictive measures could not avoid.

Designated confidential information may be used only for this lawsuit. The order permits disclosure to specified groups, including the parties and permitted opt-in plaintiffs, certain Bloomberg personnel, counsel and their staff, experts and consultants who agree in writing to follow the order, the court, deposition personnel, witnesses under specified conditions, and mutually agreed mediators. Highly confidential material generally may be disclosed only to counsel and staff, approved experts and consultants, the court, deposition personnel, qualifying witnesses, mutually agreed mediators, and others agreed to in writing.

The order establishes procedures for challenging a confidentiality designation. The challenging party must first meet and confer in good faith. If the dispute remains unresolved, the party may file a short letter-motion requesting an informal conference. The material remains protected while the dispute is pending, and the producing party bears the burden of showing that its designation is proper.

The order also addresses confidential information produced by nonparties, accidental failures to designate material, use of confidential material in court and depositions, subpoenas and other government demands, inadvertent production of attorney-client or work-product-protected material, and return or destruction of protected material after the lawsuit—including appeals—ends. It preserves the parties' rights to object to production, challenge designations, seek modification, and assert privilege.

Court’s Limitation on the Order

Judge Jesse M. Furman ordered the stipulation but expressly stated that the court had not reviewed the documents covered by it and made no finding that any document was confidential. Any such determination would be made, if necessary, through document-by-document review under the court's rules and the presumption favoring public access to judicial documents. The court also stated that the order does not authorize the parties to file documents under seal without obtaining a prior court order.