Atwood v. Barrow Street Nursery School at Greenwich House Inc.

Background

All parties requested a protective order under Federal Rule of Civil Procedure 26(c). Through counsel, they agreed to terms governing nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored order covering the pretrial phase of the action.

Confidentiality Designations

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as “Confidential” only 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, product-development, or marketing plans; personal or intimate information; or another category later given confidential status by the court.

The order provides procedures for marking confidential material, supplying redacted copies for public use, and designating deposition testimony or exhibits. A producing party may also correct an earlier failure to designate material by notifying the parties and providing replacement copies.

Disclosure and Use

Covered people may disclose confidential discovery material only to specified recipients, including the parties, certain insurers and their counsel, counsel and litigation support staff, outside service providers, mediators or arbitrators, certain witnesses, experts and specialized advisers, deposition stenographers, and the court. Mediators, arbitrators, witnesses, experts, and specialized advisers generally must first receive the order and sign a nondisclosure agreement.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether any document, testimony, or evidence is admissible at trial.

Court Filings and Challenges

The order does not itself establish that designated material is confidential. The court retains discretion over whether to give material confidential treatment. Parties filing confidential material must publicly file a redacted version and separately seek permission to file an unredacted version under seal, supported by a particularized justification. The order warns that the court is unlikely to seal material introduced at trial merely because it was previously designated confidential.

A party may object to a confidentiality designation or request additional disclosure limits before trial. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court’s applicable practices.

Disposition and Effect

Judge Gregory H. Woods ordered the parties and other people subject to the order to comply, on pain of contempt. Recipients generally must return or destroy confidential discovery material within 60 days after final disposition of the action, including appeals, subject to the order’s provision allowing counsel to retain certain archival copies. The order survives the end of the litigation, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions. The opinion is a discovery and confidentiality order and does not decide the underlying claims.