Swierk v. The Mark Hotel Management LLC
- Gregory Woods
- 1:23-cv-02388
- U.S. District Court · Southern District of New York
- 8
In Swierk v. The Mark Hotel Management LLC, Judge Woods approved a confidentiality order governing discovery and limiting use and disclosure of designated materials.
The parties—Karolina Swierk, The Mark Hotel Management LLC, The Mark Hotel Member 2 LLC, and Nesim Bahar—and the officers, agents, employees, attorneys, service providers, witnesses, experts, and other persons covered by the order.
What happened
In Swierk v. The Mark Hotel Management LLC, all parties asked the court to issue a confidentiality order for nonpublic and competitively sensitive information that could be exchanged during discovery. The parties agreed to the order’s terms through their lawyers.
The order allows parties to mark certain discovery material as confidential, including previously undisclosed financial information, business plans, ownership information, and personal or intimate information. It limits disclosure to specified people, requires some recipients to sign nondisclosure agreements, restricts use to this case and related appeals, and sets procedures for court filings, objections, subpoenas, and returning or destroying materials.
Judge Gregory H. Woods found good cause and ordered the parties and other covered people to follow the confidentiality requirements, subject to contempt. The order does not itself decide that any material is confidential or guarantee that confidential material will remain sealed if introduced in evidence.
The detailed version
- Swierk v. The Mark Hotel Management LLC · No. 1:23-cv-02388
- Gregory Woods
- Nov. 10, 2023
Background
Karolina Swierk brought this action against The Mark Hotel Management LLC, The Mark Hotel Member 2 LLC, and Nesim Bahar. The opinion text provided is a stipulated confidentiality agreement and protective order. The parties, through counsel, asked the court to issue the order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that might be disclosed during discovery.
The court found good cause for an appropriately limited confidentiality order covering the pretrial phase of the action.
Order’s Requirements
The order covers discovery material designated as “Confidential.” A producing party may designate only portions that it reasonably and in good faith believes contain specified categories of information, including previously undisclosed financial information; previously undisclosed 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 that the court later gives confidential status.
The order sets procedures for marking confidential material and providing redacted copies for public use. Deposition testimony and exhibits may be designated during a deposition or within 30 days after the deposition. A producing party may also correct an earlier failure to designate material, subject to written notice and replacement copies within two business days.
People subject to the order may disclose confidential material only to specified recipients, including the parties and certain insurers and counsel, counsel and their assigned staff, outside vendors, mediators or arbitrators, certain people identified on documents, potential witnesses, experts or specialized advisers, deposition stenographers, and the court. Mediators, arbitrators, witnesses, experts, and specialized advisers generally must first receive the order and sign the required nondisclosure agreement.
Confidential material may be used only to prosecute or defend this action and related appeals. The order does not waive objections to discovery, privilege, or evidentiary objections. It also does not prevent production in response to a lawful subpoena or other compulsory process, but it requires notice to the producing party when reasonably possible and, if time permits, at least 10 days before disclosure.
Court Filings and Sealing
A party filing confidential discovery material or a filing that reveals such material must publicly file a redacted copy and submit an unredacted copy under seal in accordance with the court’s rules. A party seeking to file material under seal must make a particularized showing supporting sealing. The order warns that the court may unseal documents if it cannot make specific findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.
The court expressly stated that it had not determined that any discovery material was actually confidential and retained discretion to decide whether to give confidential treatment to designated material. It also stated that confidential treatment is unlikely to continue for material introduced into evidence at trial.
Disposition
The court ordered the parties and other persons covered by the order to follow its terms, subject to contempt. Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they retained no copies or other reproductions, subject to an archival-copy exception for attorneys specifically retained for the action. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.
The court therefore entered the stipulated confidentiality agreement and protective order. The opinion text does not decide the underlying claims.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.