Sonterra Capital Master Fund, Ltd. v. Barclays Bank PLC
- Vernon Broderick
- 1:15-cv-03538
- U.S. District Court · Southern District of New York
- 21
In Sonterra Capital v. Barclays, Judge Broderick entered a protective order limiting use and disclosure of Deutsche Bank discovery materials.
Deutsche Bank AG, the representative plaintiffs and other parties, their counsel, experts, witnesses, litigation-support personnel, settlement administrators, nonparties providing discovery, and others subject to the order.
What happened
In Sonterra Capital Master Fund, Ltd. v. Barclays Bank PLC, Deutsche Bank AG and the representative plaintiffs agreed to confidentiality rules for information Deutsche Bank produces in the case. The court found good cause and ordered the parties and others who receive the materials to follow those rules.
The order permits Deutsche Bank to label materials as confidential or highly confidential and limits their use mainly to prosecuting or defending this case. It restricts who may receive the materials, requires certain recipients to sign nondisclosure agreements, requires covered court filings to be sealed only under a further court order, and provides procedures for claims that privileged information was disclosed by mistake.
Judge Vernon S. Broderick entered the stipulated protective order on August 24, 2024. The order remains effective after the litigation ends, and the court retains authority to enforce it.
The detailed version
- Sonterra Capital Master Fund, Ltd. v. Barclays Bank PLC · No. 1:15-cv-03538
- Vernon Broderick
- Aug. 24, 2023
Nature of the Order
This was a stipulated protective order governing materials produced by Deutsche Bank AG in the litigation. Deutsche Bank and the representative plaintiffs agreed to the terms, and the court found good cause for issuing a tailored confidentiality order. The order governs the parties, their representatives, experts, consultants, nonparties providing discovery, and others with actual or constructive notice of the order.
Confidentiality and Permitted Use
The order defines information, documents, and data produced by Deutsche Bank or its affiliates, subsidiaries, or current or former employees as “Deutsche Bank Discovery Material.” Recipients may not disclose that material except as the order permits. The material may be used only to prosecute or defend this action, including any appeal, subject to a limited exception allowing a settlement administrator to use specified transaction-counterparty contact information and other customary claims-processing data for settlement notice and administration. The order does not restrict information that is or becomes publicly available.
Deutsche Bank may designate material as “Confidential” if it includes categories such as nonpublic financial information, business plans, trading strategies, proprietary business information, or information requiring confidential treatment under applicable law. It may designate material as “Highly Confidential” when it reasonably and in good faith believes disclosure could cause competitive, commercial, or personal harm, lead to improper market manipulation, or reveal trade secrets, legally protected information, or undisclosed third-party financial information.
Access Restrictions
Confidential material may be disclosed, only as reasonably necessary for this case, to specified persons such as representative plaintiffs or parties that sign a nondisclosure agreement, participating counsel and their staff, certain document recipients, potential or actual witnesses, experts who sign nondisclosure agreements, litigation-support personnel, the court, and a court-appointed settlement administrator. Highly confidential material has stricter access limits and generally may be disclosed to participating counsel, specified natural-person parties or decision-makers, certain document recipients, called witnesses, qualified experts, litigation-support personnel, the court, and a court-appointed settlement administrator.
Witnesses and experts must receive notice of the order before disclosure, and experts must sign the required nondisclosure agreement where the order requires it. The order also limits discovery from testifying experts and protects draft reports, specified expert communications, and materials treated as attorney work product.
Sealing and Inadvertent Disclosure
Confidential and highly confidential material filed with the court, and filings that reveal such material, must be filed under seal until further court order. However, the order states that no document may be redacted or sealed without a further order addressing the specific document or portion, subject to the court’s rules and the presumption favoring public access to judicial documents. The order does not change the requirements of Federal Rule of Civil Procedure 5.2 concerning specified personal information.
If Deutsche Bank claims that it inadvertently produced privileged or otherwise protected information, the disclosure alone does not waive the claimed protection. The receiving party generally must return or destroy the material within fourteen business days and provide a written certification. Deutsche Bank must then provide a privilege log, and the receiving party may ask the court to compel production. The order states that Deutsche Bank retains the burden of showing that the material is privileged or protected.
Duration and Enforcement
The order continues after termination of the litigation. After final conclusion by a judgment not subject to further appeal or by settlement, Deutsche Bank may request the return or destruction of covered materials within the time specified by the order, subject to listed exceptions for court filings, transcripts, the trial record, court opinions or orders, and certain attorney materials. The court retains jurisdiction to enforce the order, and disputes must be brought to the court under its rules. Judge Vernon S. Broderick ordered the stipulated protective order on August 24, 2024.
Read the full 21-page opinion on CourtListener, the free public archive maintained by the Free Law Project.