Henriquez v. Hershey Creamery Company
- Philip Halpern
- 7:23-cv-01392
- U.S. District Court · Southern District of New York
- 10
Henriquez v. Hershey Creamery Company: Judge Halpern entered a protective order governing confidential discovery materials and their disclosure in this case.
The parties, their counsel and litigation personnel, experts, consultants, certain witnesses, mediators and arbitrators, service providers, third parties providing discovery, and other persons subject to the order. The order governs their handling and use of designated confidential discovery material.
What happened
In Henriquez v. Hershey Creamery Company, Branden Henriquez sued Hershey Creamery Company individually and on behalf of others similarly situated. The parties agreed to rules protecting certain nonpublic and competitively sensitive information exchanged during discovery.
The court’s order limits disclosure of information marked confidential, including certain financial information, business plans, personal information, and other information the court later protects. It allows disclosure to specified people, such as the parties, lawyers, experts, certain witnesses, and the court, subject to additional conditions in some circumstances.
Judge Philip M. Halpern found good cause for the order and entered it on September 19, 2023. The order also sets procedures for challenging confidentiality designations, filing confidential materials under seal, handling accidentally disclosed privileged information, returning or destroying protected materials, and enforcing the order.
The detailed version
- Henriquez v. Hershey Creamery Company · No. 7:23-cv-01392
- Philip Halpern
- Sept. 19, 2023
Background
Branden Henriquez brought this action individually and on behalf of others similarly situated against Hershey Creamery Company. The parties, through counsel, asked the court to issue a confidentiality and protective order under Federal Rule of Civil Procedure 26(c). They agreed that the case might require disclosure of nonpublic and competitively sensitive information during discovery.
The Court’s Order
The court found good cause for an appropriately tailored order governing the pretrial phase of the action and ordered all persons subject to it to comply, with possible contempt sanctions for violations. Those persons include the parties, their corporate parents, successors and assigns, representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice of the order.
The order permits a producing party to designate as confidential only material that it reasonably and in good faith believes includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information about an individual; or another category the court later protects. Confidential material generally may not be disclosed except as the order permits.
Permitted recipients include the parties and certain insurers and insurance counsel; lawyers and their litigation staff; outside vendors and service providers; mediators or arbitrators; document authors and addressees; certain potential witnesses; experts and other specialized advisers; deposition transcription staff; and the court. Potential witnesses, experts, mediators, and arbitrators must receive the order and sign a nondisclosure agreement before receiving protected material.
Sealing and Challenges
The order does not automatically require the court to seal documents. A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. A party filing under seal must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to keep confidential any discovery material submitted in connection with a motion or other proceeding, and warned that material introduced at trial is unlikely to remain sealed.
A party may object to a confidentiality designation before trial by giving written notice stating the grounds for the objection. A party may also request additional disclosure limits, such as an attorneys’-eyes-only designation, under the procedures in the order.
Use, Privilege, and Retention
Confidential discovery material may be used only to prosecute or defend this action and any appeals, not for business, commercial, competitive, or unrelated litigation purposes. The order preserves objections to discovery, privileges, and protections, and does not decide whether evidence will be admissible at trial.
If privileged or attorney-work-product material is accidentally disclosed, the disclosure does not waive the protection. After receiving notice, the recipient 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 that the material is privileged or protected.
Within 60 days after the 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 reproductions. Lawyers specifically retained for the action may keep archival copies of specified litigation files and work product, 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.
Disposition
Judge Philip M. Halpern ordered the stipulated confidentiality and protective order on September 19, 2023. The opinion does not decide the underlying claims or defenses in the lawsuit.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.