Krueger v. CareRite Centers, LLC.

Background

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that could be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Confidentiality designations

A producing party may designate only material that it reasonably and in good faith believes includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information about an individual; or another category that the court later protects. The order requires confidential portions of ordinary discovery materials to be marked and requires a redacted copy to be produced for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential.

Permitted disclosures and use

Confidential discovery material may be disclosed only to the parties and their insurers, counsel and litigation support staff, outside vendors, mediators or arbitrators, certain people identified on documents, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court. Mediators, arbitrators, witnesses, experts, and specialized advisers must first receive the order and sign a nondisclosure agreement. Recipients may use the material only to prosecute or defend this action and any appeals, not for business, competitive, commercial, or unrelated litigation purposes.

Court filings and challenges

The order does not decide whether material is admissible at trial, waive objections to discovery, or waive privilege. A party filing confidential material must publicly file a redacted version and submit the unredacted version under seal, along with the materials required by the court's practices. A party seeking continued sealing must justify it on a particularized basis, and the court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or proceeding. The order warns that material introduced at trial is unlikely to remain sealed. A party may object to a confidentiality designation or request additional limits, such as attorneys'-eyes-only treatment, and unresolved disputes must be presented to the court under its individual practices.

Privilege and enforcement

If privileged or work-product material is inadvertently disclosed, the disclosure does not waive the protection under the order. The receiving party must return or destroy the material within five business days after notification and provide counsel's certification. The producing party must then provide a privilege log, while the receiving party may ask the court to compel production. The producing party retains the burden of establishing privilege or protection, and a party may request the court's private review of the material.

Duration and ruling

Within 60 days after final disposition, including appeals, recipients must return or, with the producing party's permission, destroy confidential discovery material and certify that they retained no copies or summaries. Counsel may keep specified archival litigation files, but those files remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions. Judge Philip M. Halpern therefore entered the stipulated confidentiality agreement and protective order.