Bucciero v. Amrock, LLC

Nature of the Order

The court entered a stipulated confidentiality and protective order under Federal Rule of Civil Procedure 26(c). The parties requested the order to protect nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the action.

Confidential Information

A producing party may designate only portions of discovery material that it reasonably and in good faith believes contain specified categories of information. Those categories include previously undisclosed financial information; previously undisclosed information about ownership or control of a nonpublic company; previously undisclosed business plans, product-development information, or marketing plans; personal or intimate information about an individual; and any other category the court later gives confidential status.

The order requires confidential portions of most discovery material to be clearly marked and requires the producing party to provide a version with the confidential information redacted for future public use. Deposition exhibits or testimony may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing before trial.

Permitted Disclosures and Use

Confidential discovery material may be disclosed only to persons listed in the order, including the parties and their insurers; counsel and assigned support staff; outside vendors serving the litigation; mediators or arbitrators; certain people identified on a document; potential witnesses; experts and other specialized advisers; deposition stenographers; and the court and its personnel. Mediators, potential witnesses, experts, and other specialized advisers generally must first receive the order and sign a nondisclosure agreement.

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

Court Filings and Challenges

A party filing material under seal must publicly file a redacted version and file the unredacted version under seal. The party must also submit a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. The order states that the court retains discretion over whether to keep confidential material confidential when it is submitted in connection with a motion, application, or proceeding that may result in a court order or decision. It also warns 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. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court's individual practices. A party seeking additional disclosure limits, such as an attorneys'-eyes-only designation in extraordinary circumstances, must follow a similar procedure.

Privilege and Inadvertent Disclosure

The order provides that an inadvertent disclosure of material protected by attorney-client privilege or attorney work-product protection does not waive or forfeit the protection. After receiving notice of an inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide a certification. The disclosing party must then provide a privilege log within five business days after notification that the material was returned or destroyed. The receiving party may ask the court to compel production, and the disclosing party retains the burden of establishing that the material is privileged or otherwise protected.

End of the Case and Enforcement

Within 60 days after final disposition of the action, including appeals, recipients must return confidential discovery material or destroy it if the producing party permits destruction. They must certify that they have not retained copies or other reproductions. Counsel specifically retained for the action may keep archival copies of certain case materials, but those copies remain subject to the order.

The order survives termination of the litigation and remains binding on persons who received confidential material. The court retained jurisdiction to enforce the order and impose contempt sanctions. The order expressly states that it does not waive objections to discovery, waive privilege or protection, or decide whether evidence is admissible at trial. Judge Philip M. Halpern therefore resolved the parties' request for discovery protections without ruling on the underlying claims.