Perkins v. The New York Times Company

Background

The court entered a consent protective order under Federal Rule of Civil Procedure 26(c) and the case management order. The parties anticipated that discovery could involve confidential or proprietary material produced by the parties or third parties, including financial information, personally identifying information, and commercially sensitive business information.

What the Order Covers

The order defines “CONFIDENTIAL Information” broadly to include information, documents, testimony, and tangible items regarded as confidential or private, including proprietary data, trade secrets, commercially sensitive information, and private information concerning parties, witnesses, and other people. Documents include information recorded in any form, including paper records, electronically stored information, and audio or video recordings.

Information designated confidential must be kept confidential, may not be disclosed to unauthorized people, and may be used only for purposes of the litigation. If an unauthorized disclosure occurs, the responsible person must promptly notify counsel for the designating party and make efforts to prevent further disclosure.

Designation and Access

The order establishes procedures for designating documents, tangible items, electronic records, discovery responses, and deposition testimony as confidential. An inadvertent failure to designate certain material may generally be corrected by notice and marking within five business days after the issue is discovered. Deposition designations may be made on the record or within thirty days after receipt of the transcript; before designation or expiration of that period, the entire transcript is treated as confidential.

Confidential discovery material may be accessed by attorneys and their litigation staff, the parties and specified personnel of the parties and their affiliates, court officials, certain witnesses, independent contractors and experts assisting with the case, and a settlement administrator and staff. Other people may receive access by court order or agreement with the designating party. People receiving confidential information must take reasonable precautions against unauthorized disclosure, and witnesses, contractors, consultants, and experts generally must receive the order and sign the required declaration unless an exception applies.

Sealing, Disputes, and Privilege

The order does not itself permit filing documents under seal. A party must obtain a further court order addressing the specific material and support a sealing application with affidavits and a memorandum of law addressing the applicable standards, including the standards discussed in Lugosch v. Pyramid Co. of Onondaga. The order also provides advance-notice procedures when one party seeks to use another party’s confidential information in a filing.

A party challenging a confidentiality designation must first try in good faith to resolve the dispute with opposing counsel. If the dispute remains, the party seeking to maintain the designation must present it to the court by motion under Rule 26(c) within fourteen calendar days after written notice of the disagreement. The designating party bears the burden of establishing confidentiality. The order also provides procedures for accidentally disclosed privileged material under Federal Rule of Evidence 502 and Federal Rule of Civil Procedure 26(b)(5)(B), including meeting and conferring and, if necessary, presenting the issue to the court under seal.

End of the Case and Disposition

Within thirty days after the action concludes, including appeals, parties must destroy confidential information and copies held by them, subject to counsel’s right to retain specified litigation records in secure storage under the order. The confidentiality and use restrictions continue after the case ends. The court retained jurisdiction to enforce the order and impose contempt sanctions. Judge P. Kevin Castel entered this consent protective order; the opinion does not rule on the merits of Perkins’s claims or The New York Times Company’s defenses.