Dumas v. Kroll, LLC

Background

Dennis Dumas and Kroll, LLC, through their lawyers, agreed that some information sought or produced in discovery could be confidential. They asked the U.S. District Court for the Southern District of New York to enter their amended stipulated confidentiality and protective order under Federal Rule of Civil Procedure 26(c), which allows a court to protect certain information disclosed during litigation.

Order

The court ordered the parties and other people covered by the order not to disclose discovery materials marked “Confidential,” except as the order permits. A producing party may designate information as confidential if it reasonably and in good faith believes the information includes proprietary business information, Kroll-related work product, personal financial information, personal or intimate information, personnel records, medical information, private client information, or another category later given confidential status by the court. Information produced by a third party in response to a request for medical information covered by the Health Insurance Portability and Accountability Act must be treated as confidential regardless of whether it is marked.

The order permits disclosure to specified recipients, including the parties and their insurers, certain employees and lawyers, litigation vendors, mediators or arbitrators, potential witnesses, document authors or recipients, experts and other specialized advisers, deposition transcription staff, and the court. Before receiving confidential information, potential witnesses, experts, and specialized advisers must receive the order and sign an acknowledgment agreeing to follow it.

Confidentiality disputes and court filings

A party may challenge a confidentiality designation before trial by giving written notice explaining the objection. The parties must try to resolve the dispute informally, and the material remains confidential until the dispute is resolved. The challenging party bears the burden of showing why the material should not be treated as confidential.

The order does not decide whether evidence is admissible at trial, waive objections to discovery, or waive privilege or other protections. If privileged material is accidentally produced, the receiving party generally must return or destroy it and may not use or disclose it. The receiving party may instead ask the court to review the disputed material privately to challenge the privilege claim.

The order states that confidential treatment does not automatically allow court filings to be sealed. A party seeking to file under seal must follow Judge Gardephe’s individual practices and submit a letter brief and supporting declaration giving a particularized justification. The court retains discretion over whether to keep confidential discovery materials confidential when they are submitted in connection with a court proceeding and warns that trial evidence is unlikely to remain sealed.

Duration and enforcement

Confidential materials may be used only to prosecute or defend this action and related appeals, not for another lawsuit or purpose. Within 60 days after the final disposition of the action, including appeals, recipients generally must return or destroy the materials and confirm that they have done so. Lawyers specifically retained for the action may keep archival copies of specified case and work-product materials.

The order continues after the litigation ends. The court retains jurisdiction over people subject to the order as needed to enforce its obligations or impose contempt sanctions, and the parties may seek declaratory or injunctive relief for violations. Judge Paul G. Gardephe signed the order on February 7, 2024.