Clarke v. TRIGO U.S.
- P. Castel
- 1:22-cv-01917
- U.S. District Court · Southern District of New York
- 10
In Clarke v. TRIGO U.S., Judge Castel entered a protective order governing confidential discovery and related disclosures.
The order applies to the parties, their corporate parents, successors and assigns, representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice of the order. It also sets conditions for people who receive confidential discovery material.
What happened
In Clarke v. TRIGO U.S., the parties asked the court to approve their agreement protecting nonpublic and competitively sensitive information exchanged during discovery. The court found good cause for an appropriately limited order.
The order allows parties to mark certain discovery as confidential, including financial information, business plans, trade secrets, personal information, and other information the court later protects. Confidential material may generally be used only for this lawsuit and may be shared only with specified people, such as the parties, litigation counsel, experts, certain witnesses, and the court, subject to additional requirements.
Judge Castel also set procedures for challenging confidentiality designations, handling accidentally disclosed privileged material, seeking permission to file confidential material under seal, and responding to subpoenas. The order requires most confidential material to be destroyed within 60 days after the case and any appeals end, while allowing attorneys to keep limited archival materials, and it remains effective after the lawsuit ends.
The detailed version
- Clarke v. TRIGO U.S. · No. 1:22-cv-01917
- P. Castel
- Sept. 12, 2023
Background
The parties, through counsel, stipulated to a confidentiality agreement and proposed protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause and ordered the parties and other persons covered by the order to comply, subject to contempt sanctions.
Confidentiality Designations and Use
Counsel may designate discovery material as confidential when, in good faith, it contains previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product, service-development, or marketing plans; trade secrets or competitively sensitive business information; personal or intimate information; or another category later protected by the court. The producing party must mark protected portions and provide a version redacted for future public use when applicable.
Confidential material may be used only in connection with the litigation. The order permits disclosure to specified recipients, including the parties and their insurers, litigation counsel and necessary employees, litigation vendors, consultants and experts, mediators or arbitrators, certain people identified in a document, potential witnesses, deposition professionals, the court, and other people approved in writing by the producing party. Many recipients must first sign the required nondisclosure agreement. The parties are directed to meet and confer if they believe a production requires an attorneys'- or experts'-eyes-only designation.
Challenges, Privilege, and Sealing
A party challenging a confidentiality designation must first make a good-faith effort to resolve the dispute and may ask the court to decide the issue if necessary. The order does not concede that confidential material is relevant or admissible and does not waive objections, privileges, or protections.
If privileged or attorney-work-product material is accidentally produced, the disclosure does not waive the protection under the order. 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 compel production. The order also provides protection under Federal Rule of Evidence 502 for inadvertent or otherwise protected productions.
A confidentiality designation alone does not permit filing material under seal. A party must obtain a further court order addressing the specific material and must support the request as required by the court's individual practices and applicable law. The court retains discretion over whether to give confidential treatment to material submitted in connection with a motion or other proceeding.
Duration and Ruling
The order requires recipients to destroy confidential discovery material within 60 days after final disposition of the action, including appeals, and to certify destruction. Attorneys specifically retained for the litigation may keep archival copies of specified case materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.
Judge P. Kevin Castel ordered the stipulated protective order and accompanying nondisclosure agreement on September 12, 2023.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.