Frommer v. MoneyLion Technologies Inc.

Background

The parties requested a stipulated confidentiality agreement and protective order for discovery in the case. The requested protections cover personal, financial, investment, medical, personnel, and sensitive commercial information that is not publicly available. The court found good cause for an appropriately tailored order governing the pretrial phase.

Protective-order terms

The order permits a party or nonparty producing discovery material to designate information as “Confidential” when the producing person reasonably and in good faith believes it contains protected information. Information that warrants a higher level of protection under Federal Rule of Civil Procedure 26(c), including highly sensitive financial, marketing, technical, or business information, may be designated “Attorneys’ Eyes Only.” That designation provides the protections for confidential material while also restricting access by the parties.

The protections extend to copies, excerpts, summaries, compilations, extracted information, and testimony or presentations about protected material. Protected material generally may be used only for this case and may not be disclosed to the media, posted online, or used for unrelated business or commercial purposes.

The order identifies permitted recipients. Confidential material may be shared with the parties and their employees, counsel and counsel’s litigation personnel, certain people identified in documents, qualifying witnesses, experts, consultants, investigators, court reporters, deposition-related technicians, and the court and its personnel. Certain recipients must first receive the order and sign a nondisclosure agreement. Attorneys’ Eyes Only material may not be disclosed to the parties, but may be disclosed to the other listed categories under the order’s conditions.

The order also establishes procedures for applying designations to documents and transcripts, handling nonparty protected information, correcting an omitted designation, and responding to inadvertently produced material subject to privilege or other protection. Parties or producing persons may challenge confidentiality designations or request additional limits. If they cannot promptly agree, counsel must send a letter to the court.

Sealing and public access

The order states that a Confidential or Attorneys’ Eyes Only designation does not create a presumption that material will be filed under seal. Parties must follow Judge Furman’s Individual Practices when seeking sealed or redacted filings. The court retains discretion to decide whether confidential treatment is appropriate for documents submitted in connection with a motion or other proceeding that may result in a court order or decision.

The court specifically stated that it had not reviewed the documents covered by the stipulation and therefore made no finding that they are confidential. Any such finding would be made, if at all, through document-by-document review under the court’s procedures and the presumption favoring public access to judicial documents. The court did not approve provisions that would allow the parties to file documents under seal without a prior court order.

Disposition

Judge Jesse M. Furman ordered the stipulated protective order. The order generally survives the end of the litigation, subject to its terms concerning the return or destruction of protected material. The court also retained jurisdiction as necessary to enforce or modify the order and to impose sanctions for contempt.