Bennett v. Cuomo
- Vernon Broderick
- 1:22-cv-07846
- U.S. District Court · Southern District of New York
- 10
In Bennett v. Cuomo, Judge Cave issued a stipulated protective order limiting disclosure of designated confidential discovery materials in the case.
The parties—Charlotte Bennett, Andrew M. Cuomo, Melissa DeRosa, Jill DesRosiers, and Judith Mogul—and their lawyers, representatives, witnesses, experts, vendors, and other people who receive confidential discovery material or actual notice of the order.
What happened
In Bennett v. Cuomo, the parties jointly asked the court to protect nonpublic and sensitive information that might be exchanged during discovery. The order applies to Charlotte Bennett, Andrew M. Cuomo, Melissa DeRosa, Jill DesRosiers, Judith Mogul, their lawyers and representatives, and others who receive notice of it.
The order limits disclosure of material marked confidential, including previously undisclosed financial information and sensitive personal information. It allows disclosure to specified people, such as the parties, lawyers, experts, certain witnesses, and the court, often after a nondisclosure agreement. Confidential material may be used only for this case and related appeals, and generally must be returned or destroyed after the litigation.
Judge Sarah L. Cave approved and entered the stipulated amended confidentiality agreement and protective order on October 27, 2023. The order does not itself decide that any material is confidential, does not guarantee that documents will remain sealed, and preserves the court's authority to enforce the order and impose contempt sanctions.
The detailed version
- Bennett v. Cuomo · No. 1:22-cv-07846
- Vernon Broderick
- Oct. 27, 2023
Background
The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action and entered the parties' stipulated amended confidentiality agreement and protective order.
Confidentiality designations
The order defines “Discovery Material” broadly to include information produced or disclosed during discovery, including information produced by a nonparty in response to a subpoena. A producing party, or a party concerning nonparty subpoena materials, may designate material as confidential only when it reasonably and in good faith believes the material contains previously undisclosed financial information, sensitive personal information about an individual, or another category that the court later gives confidential status.
The designating party must clearly mark protected portions as “Confidential” and provide a version with the confidential information redacted for future public use. Deposition testimony and exhibits may be designated during the deposition or in writing within 10 days after the deposition. Material previously produced without restrictions may later be designated as confidential, with replacement versions provided within two business days after notice.
Permitted disclosures and use
People subject to the order may disclose confidential discovery material only to specified recipients. These include the parties and their insurers, counsel and litigation-support personnel, outside vendors, mediators or arbitrators, document authors and addressees, certain potential witnesses, experts and specialized advisers, deposition transcriptionists, and the court. Mediators, arbitrators, witnesses, experts, and specialized advisers must first sign the nondisclosure agreement attached as Exhibit A, and counsel must provide them with the order.
Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. The order does not restrict a party's rights regarding that party's own documents or information. People with access must take precautions against unauthorized or inadvertent disclosure. After the litigation concludes, confidential material generally must be returned or destroyed, although litigation counsel may retain an archival copy of materials filed in the action.
Privileged material and court filings
The order states that producing privileged or protected material does not waive the applicable protection, including attorney-client, law-enforcement, deliberative-process, and work-product protections. If a producing party identifies such a disclosure, receiving parties must stop using the material and promptly return, sequester, or destroy it. The order also establishes a similar process when a receiving party believes that privileged or protected material was produced.
The order does not itself determine that any discovery material is confidential and leaves the court discretion to decide whether to give material confidential treatment. Parties filing confidential material must publicly file a redacted copy and seek permission to file an unredacted copy under seal through a letter motion supported by particularized grounds. The order warns that material introduced at trial is unlikely to remain sealed without the required specific findings.
Challenges and enforcement
A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys'-eyes-only treatment in extraordinary circumstances. If the parties cannot promptly resolve the dispute, they must bring it to the court under the court's individual rules. The order remains binding after the litigation ends, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.