Joseph v. Manhattan and Bronx Surface Transit Operating Authority

Nature of the Order

The court entered a stipulated and agreed protective order governing confidential discovery material produced by a party or certain non-parties and received by a party in the action. The order concerns the handling of discovery; it does not address the merits of the claims.

Information Covered

The order applies to confidential discovery material, including commercial and technical business information, tax and financial information, business plans, trade secrets, personnel records, wage and benefits information, employment evaluations and discipline records, medical and mental-health information, settlement and mediation information, records whose disclosure is restricted by statute, and copies, excerpts, summaries, or other materials that reveal protected information. The parties may also treat other documents as confidential by agreement.

A producing party must mark protected material “CONFIDENTIAL,” identify protected portions of documents when only part of a page qualifies, and provide notice when marking the material directly is not feasible. Confidential designations must generally be made before production, although material made available for inspection is treated as confidential until the producing party makes its designations. The order prohibits broad, indiscriminate, or routine designations and requires reasonable care to limit designations to material that qualifies for protection.

Who May Receive the Material

Qualified recipients include the parties and specified representatives, counsel and litigation-support personnel, non-expert and potential witnesses and their counsel under stated conditions, consulting and testifying experts and their staff, mediators and arbitrators, insurers and specified representatives, deposition reporters and recording personnel, the court and its staff, jurors, and auditors or regulators entitled to review the information for contractual or legal purposes.

Counsel must instruct witnesses, consultants, and outside counsel about the confidentiality restrictions. Certain witnesses, consultants, and experts must review and sign the agreement attached as Appendix A before receiving confidential material. Counsel must also keep a record of disclosed confidential material, the recipients, and executed agreements. The order states that the disclosure restrictions remain enforceable even if a recipient does not sign the agreement.

Use, Filing, and Challenges

Recipients may use confidential discovery material only to prepare for and conduct this action, not for business or other purposes. They must protect the material from access by unauthorized people, including at hearings and trial. Copies generally may be made only for transmission to qualified recipients, with written permission from the producing party or a court order, although the order permits working copies and use of document-review systems for case preparation.

Documents containing designated confidential material that are filed with the court must be provisionally filed under seal with a motion seeking permission to file under seal. The order does not determine whether the court will restrict or permit public access, and it does not change the standards governing public access to court records.

A party challenging a confidentiality designation must first confer in good faith with the producing party. If the dispute remains unresolved, the parties must follow the order’s letter procedures for seeking court intervention. The producing party bears the burden of showing that its designation was proper, and a challenging party must obtain a court order before disclosing the material beyond qualified recipients.

Other Provisions

Confidential material may be used at hearings or trial subject to the Federal Rules of Evidence, and a party may ask the court to review it privately or impose other conditions. After the action, including appeals, ends, the parties must make reasonable efforts to destroy the confidential material within the stated time, or return it if destruction is not possible. Counsel may retain complete copies solely for archival purposes, and the confidentiality designations continue after the litigation ends.

The order allows a party to seek additional protections or modification, relaxation, or rescission of restrictions. Newly joined parties may not access confidential material until they agree to be bound by the order. If a producing party discovers an inadvertent failure to designate material, it has 14 days to correct the error after discovering the oversight. The order also provides that producing privileged or work-product-protected material, whether inadvertently or otherwise, does not waive that protection under Federal Rule of Evidence 502.