Amalgamated Bank v. JPMorgan Chase Bank, N.A.

Nature of the Order

The court issued a confidentiality stipulation and proposed protective order under Federal Rule of Civil Procedure 26(c). The parties agreed to the terms, and the court found good cause for an appropriately tailored order. The order facilitates discovery but does not require either party to produce any particular document or information.

Confidentiality Designations

Counsel may designate material as confidential when, in good faith, protection is needed for proprietary information, trade secrets, or other sensitive nonpublic information. “Confidential” material is defined as nonpublic material that the producing party reasonably and in good faith believes contains trade secrets, proprietary business information, or information implicating an individual’s legitimate expectation of privacy.

The order also creates a “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” category for confidential information that is so sensitive that disclosure to a competitor could cause significant competitive or commercial disadvantage. Documents must be marked with the applicable designation, and the parties must use reasonable care to avoid over-designating material.

Use and Disclosure

Designated material may be used only for this litigation. Subject to the order’s conditions, it may be disclosed to parties and certain of their personnel, counsel and litigation staff, consultants, experts, witnesses or prospective witnesses, copying and translation services, litigation-support firms, and the court. People receiving the material generally must be told about its confidential nature and agree in writing to be bound by the order. Witnesses and prospective witnesses may not retain designated material disclosed for testimony or testimony preparation.

Personally identifying information, such as Social Security numbers, financial-account numbers, passwords, and information that could be used for identity theft, must be stored securely. The order also provides that an inadvertent production of privileged or work-product-protected material does not waive the protection. After notice, receiving parties must return the material and destroy related notes or summaries, while preserving the right to challenge the privilege designation in court.

Challenges, Sealing, and Case Conclusion

A party may challenge a confidentiality designation after attempting in good faith to resolve the issue with the designating party. If the dispute remains unresolved, the challenging party may seek court relief, and the designating party bears the burden of showing that the designation is proper. The court may impose sanctions for a position taken without substantial justification.

The order expressly states that a confidentiality designation does not create a presumption that material may be filed under seal. A party seeking to file designated material under seal must follow the court’s procedures and obtain a prior court order. The court stated that it had not reviewed the documents and made no finding that they were confidential; any such determination would occur through document-by-document review, subject to the presumption favoring public access to judicial documents.

The order requires protected material to be returned or certified as destroyed after the litigation, while allowing counsel to retain protected working files. It also recognizes that federally regulated banks may be unable to destroy some electronic records until permitted by their regulators, in which event confidentiality must continue during the required retention period. The restrictions may be modified or ended only by another court order. Judge Jesse M. Furman therefore ordered the agreed discovery-confidentiality procedures while declining to authorize automatic sealing or making a document-specific confidentiality finding.