Bekker v. Macy's Retail Holdings, LLC

Nature of the Order

This is a stipulated protective order governing the pretrial discovery phase of the case. The parties agreed to its provisions, and the Court found good cause for entering an appropriately tailored confidentiality order.

Confidential Discovery Materials

The order defines “Discovery Material” broadly as information provided during discovery. A producing person may designate material as “Confidential” when it contains nonpublic business, commercial, financial, or personal information that, in the producing person’s good-faith view, could seriously harm business, commercial, financial, or personal interests or cause a violation of privacy or confidentiality obligations. When the confidential portion can reasonably be separated from the rest, only that portion should be designated.

The order establishes procedures for marking documents and deposition testimony as confidential. A producing person may also correct an earlier failure to designate material by giving written notice and providing replacement versions marked confidential within two business days.

Who May Receive Confidential Materials

Confidential discovery materials may be disclosed only to specified people, including the parties; counsel and their case-specific staff; certain people identified on a document; witnesses who may testify and who sign the required nondisclosure agreement; experts and consultants who sign that agreement; deposition and litigation-support personnel; the Court and its staff; and any other person approved in writing by the person who designated the material confidential. Counsel must provide the order to covered witnesses, experts, and consultants before disclosure and retain their signed agreements.

Challenges, Sealing, and Privilege

A person may object to a confidentiality designation or request stricter limits, such as an attorneys’-eyes-only restriction, by giving written notice before trial. If the parties cannot promptly agree, counsel must request a joint telephone call with the Court.

The order states that designating discovery material as confidential does not create a presumption that the material may be filed under seal. The parties must follow the applicable judge’s filing procedures. It also warns that the Court is unlikely to seal or otherwise keep confidential material introduced as evidence at trial.

If a producing person inadvertently discloses material claimed to be protected by attorney-client privilege or attorney work-product protection, the disclosure alone does not waive that protection if reasonable preventive steps were taken. After receiving a notice of inadvertent disclosure, receiving persons must return or destroy the material within five business days and provide counsel’s certification. The producing person must then provide a privilege log within five business days. A motion seeking production of the material must be filed under seal and may not rely merely on the fact of inadvertent production.

Duration and Disposition

The protective order survives termination of the litigation. Within 30 days after final disposition, confidential discovery materials and copies must be returned to the producing person or destroyed if the producing person permits destruction. During the case, the Court retains jurisdiction as necessary to enforce the order or impose contempt sanctions.

Ruling

Judge Jesse M. Furman ordered the stipulated protective order. The Court expressly stated that it had not reviewed the documents themselves and therefore made no finding that any particular documents were confidential. Any such determination, if needed, would occur through document-by-document review under the Court’s procedures and the presumption favoring public access to judicial documents.