Pena v. Macy's Inc.

Nature of the order

This is a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The parties, through counsel, requested protection for nonpublic and competitively sensitive information they might disclose during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the action.

Confidential information

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

The order establishes procedures for marking confidential portions of documents and designating deposition testimony and exhibits. A producing party may also correct an earlier failure to designate material before trial by notifying prior recipients in writing.

Permitted disclosures and use

Confidential material 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 in documents, potential witnesses, experts, deposition transcription providers, and the court. Some witnesses, experts, mediators, and arbitrators must first sign the attached nondisclosure agreement, and counsel must retain those signed agreements.

Recipients may use confidential material only to prosecute or defend this action and any appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not restrict a party’s rights regarding its own documents or information.

Court filings and challenges

The order does not automatically require the court to seal documents. A party filing under seal must submit a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. Public redacted copies and sealed unredacted copies are required for confidential court submissions. The court retains discretion over confidential treatment and states that it is unlikely to seal material introduced into evidence at trial.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys’-eyes-only treatment, before trial. If the parties cannot resolve the issue promptly, the affected lawyers must bring the dispute to the court under the court’s individual practices.

Privilege and end of obligations

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not waive the protection under the order. After notification, the receiving party generally must return or destroy the material within five business days and provide a certification. The producing party must then provide a privilege log, and the receiving party may ask the court to order production; the producing party retains the burden of establishing privilege or other protection.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they kept no copies or other reproductions. Special rules permit litigation counsel to retain archival copies of certain case-related materials, which remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

Judge Philip M. Halpern ordered the parties and all other persons covered by the order to comply with its terms. The order resolved confidentiality and discovery-management issues; the opinion does not decide the merits of Pena’s claims or the defendants’ defenses.