Small v. New York City Department of Education

Background

Plaintiff Tyrell Small sued the New York City Department of Education and Valerie Paul, identified in the caption as the principal of Jamaica Children's School. The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c) for nonpublic and competitively sensitive information that might be disclosed during discovery.

The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the case.

Order

The court entered the parties' stipulated confidentiality agreement and protective order. It applies to the parties and to specified officers, agents, employees, attorneys, people acting with them, and others who receive actual notice of the order. Violations may result in contempt of court.

The order allows a producing party to designate only portions of discovery material that it reasonably and in good faith believes contain certain protected information. Listed categories include previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, product-development information, and personal or intimate information about an individual. The court may also give confidential status to other categories later.

Confidential material generally may be disclosed only to specified recipients, including the parties and their insurers, counsel and litigation support personnel, outside vendors, mediators or arbitrators, certain people identified on documents, potential witnesses, experts, court personnel, and deposition reporters. Mediators, potential witnesses, and experts must first receive the order and sign a nondisclosure agreement. The order's exhibit includes a form nondisclosure agreement.

Confidential material may be used only to prosecute or defend this case and any appeals, not for another purpose or proceeding. Recipients must take precautions against unauthorized or accidental disclosure. The order also permits disclosure when required by a lawful subpoena, other compulsory process, law, or a government agency, subject to notice requirements.

Other Procedures and Disposition

The order establishes procedures for correcting an omitted confidentiality designation, objecting to a designation, and requesting additional disclosure limits such as attorneys'-eyes-only treatment. It does not waive objections to discovery, privilege, or protection, and it does not decide whether documents or testimony will be admissible at trial.

The court did not itself determine that designated materials are confidential and retained discretion over whether to provide confidential treatment. The order warns that materials introduced at trial are unlikely to remain sealed. Parties filing confidential discovery materials must publicly file redacted versions and seek permission to file unredacted versions under seal with a particularized justification.

Within 60 days after final disposition of the case, including appeals, recipients generally must return or destroy confidential discovery materials and certify that they kept no copies. Counsel specifically retained for the case may keep archival copies of specified litigation files, which remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions. Judge Gregory H. Woods ordered the agreement on July 14, 2023.