The Doe Fund, Inc. v. Berkley Insurance Company

Nature of the Order

The court issued a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). That rule allows a court, for good cause, to limit disclosure of information exchanged during discovery. The parties requested protection for non-public and sensitive information, agreed to the proposed terms through counsel, and the court found good cause for an appropriately limited order covering the pretrial phase.

Confidentiality Rules

The order treats information produced or disclosed during discovery as “Discovery Material.” Recipients may use it only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or unrelated litigation purposes. People covered by the order generally may not disclose Discovery Material except as the order permits or the court directs.

A producing party may designate material “Highly Confidential” if it reasonably and in good faith believes disclosure could harm a business, commercial, financial, personal, or other interest. Listed examples include non-disclosed financial information, information about ownership or control of a non-public company, business plans, product-development information, marketing plans, proprietary information, personal or intimate information, and sensitive information concerning the underlying claims.

Permitted Disclosures and Court Filings

The order permits disclosure to specified recipients, including the parties and certain affiliated entities, insurers and reinsurers, counsel, litigation vendors, mediators and arbitrators who sign a required nondisclosure agreement, document authors and recipients, potential witnesses, experts and specialized advisers who sign a required nondisclosure agreement, deposition stenographers, and the court. Before disclosure to certain witnesses, experts, mediators, or arbitrators, counsel must provide the person with the order and obtain agreement to be bound by it.

A party filing confidential material under seal must also file a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. Highly confidential court submissions must have a publicly filed redacted version and an unredacted version filed under seal. The court retains discretion over whether to maintain confidential treatment and warns that it is unlikely to seal material introduced into evidence at trial.

Challenges, Privilege, and Later Handling

A party may object in writing to a highly confidential designation during discovery and before trial. If the parties cannot resolve the dispute promptly, they must bring it to the court under the court’s individual practices. A party may also request additional disclosure limits in extraordinary circumstances.

The order does not waive objections to discovery, attorney-client privilege, work-product protection, or other protections, and it does not decide whether evidence is admissible at trial. If privileged or otherwise protected material is produced inadvertently, the receiving party must return it and copies or summaries within five business days after notice, or as soon as practicable. The receiving party may challenge the designation but may not argue that the protection was waived merely because the material was produced.

Within 60 days after final disposition of the action, including appeals, recipients generally must return or, with the producing party’s permission, destroy or delete Discovery Material and certify that they have done so. Counsel specifically retained for the action may keep an archival copy of specified case materials, but those copies 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. The order governs discovery confidentiality and does not resolve the parties’ underlying claims.