Pierre v. Experian Information Solutions, Inc.

Nature of the Order

The parties, through counsel, jointly requested a confidentiality and protective order under Federal Rule of Civil Procedure 26(c). The court found good cause and ordered an appropriately tailored confidentiality system for the pretrial phase of the action. This opinion does not decide the underlying claims or defenses.

Information Covered

A producing party may designate only portions of discovery material that it reasonably and in good faith believes contain previously undisclosed information such as financial information, ownership or control information about a nonpublic company, business or marketing plans, or personal or intimate information about an individual. The court may also give confidential status to other categories later.

The producing party or its counsel generally must clearly mark the protected portions and provide a redacted copy for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A party may also correct an earlier failure to designate material by notifying prior recipients in writing.

Who May Receive Confidential Material

Confidential discovery material may be disclosed only to specified people, including the parties and their insurers, counsel and their litigation staff, outside vendors working on the case, mediators or arbitrators, people identified as document authors or recipients, potential witnesses, experts and specialized advisers, deposition transcription staff, and the court. Witnesses, experts, mediators, and arbitrators must first receive the order and sign the required nondisclosure agreement. Counsel must retain those agreements and produce them as the order requires.

Recipients may use confidential material only to prosecute or defend this action and any appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order does not restrict a party's rights concerning its own documents or information.

Court Filings and Challenges

A party filing confidential material under seal must publicly file a redacted version, file the unredacted version under seal, and provide unredacted courtesy copies to the court and opposing counsel. A party seeking to maintain sealing must also file a letter brief and supporting declaration explaining, on a particularized basis, why sealing is justified. The court retains discretion over whether to treat designated material as confidential when it is submitted in connection with a motion or other proceeding and warned that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys' eyes only treatment in extraordinary circumstances. If the parties cannot promptly resolve the issue, they must present the dispute to the court under the court's individual practices.

Privilege and Return of Materials

If privileged or work-product-protected information is accidentally disclosed, the disclosure does not waive the protection under the order. After receiving a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days and certify that action. The producing party must then provide a privilege log, and the receiving party may ask the court to compel production. The producing party retains the burden of proving that the material is privileged or protected.

Within 60 days after the final disposition of the action, including appeals, recipients must return confidential material or destroy it with the producing party's permission and certify that they kept no copies or reproductions. Attorneys specifically retained for the action may keep an archival copy of certain case files and work product, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

On February 20, 2024, Judge Philip M. Halpern ordered the stipulated confidentiality and protective order. The ruling is a procedural discovery order, not a decision on the merits.