Shihab v. Source Digital, Inc.
- Denise Cote
- 1:23-cv-07266
- U.S. District Court · Southern District of New York
- 9
In Shihab v. Source Digital, Inc., Judge Cote entered a stipulated protective order governing confidential discovery.
The parties, their counsel, specified recipients of discovery materials, and others with actual notice of the order must follow its confidentiality, disclosure, use, and enforcement requirements.
What happened
In Shihab v. Source Digital, Inc., the parties asked the court to protect nonpublic and competitively sensitive information that might be exchanged during discovery. The case names Amil Gulmann Shihab as plaintiff and Source Digital, Inc., and Does 1-10, as defendants.
The order allows parties to mark specified discovery materials as confidential, including certain financial, business, personal, technical, marketing, and commercial information. It also creates a more restricted “Highly Confidential—Attorney’s Eyes Only” category and limits who may receive protected materials.
Judge Denise L. Cote approved the stipulated protective order after finding good cause. The order governs disclosure, court filings, challenges to confidentiality designations, inadvertently produced privileged materials, and the return or destruction of protected materials after the case ends.
The detailed version
- Shihab v. Source Digital, Inc. · No. 1:23-cv-07266
- Denise Cote
- Mar. 5, 2024
Background
The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. Judge Cote found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the case.
Protective designations
The order permits a producing party to designate portions of discovery material as “Confidential” when the party reasonably and in good faith believes the material includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, or marketing plans; personal or intimate information; or sensitive or proprietary financial, technical, marketing, commercial, or other business information protected under Rule 26. The court may also give confidential status to other categories by later order.
A producing party may designate material as “Highly Confidential—Attorney’s Eyes Only” under the order’s additional procedures. Deposition testimony is treated as confidential for 30 days after the deposition, unless the producing party identifies particular pages and lines earlier or later makes the required designation. A party that accidentally fails to designate material may later do so by written notice and must provide replacement versions within two business days.
Who may receive protected information
Confidential discovery material may be disclosed only to specified recipients, including the parties and their insurers when needed for this action; counsel and necessary staff; outside vendors and service providers; mediators or arbitrators; certain people identified in documents; potential witnesses; experts and other specialized advisers; deposition stenographers; the court and its personnel; people later approved by court order; and other people agreed to in writing by the parties. Certain recipients must first receive the order, sign a nondisclosure agreement, and remain subject to the order.
The order does not waive objections to discovery or privilege, and it does not decide whether evidence is admissible at trial. The court also stated that it had not determined that any particular discovery material was confidential and retained discretion over whether to give such material confidential treatment.
Court filings and use of information
A party filing confidential discovery material, or a filing that discloses it, must publicly file a redacted version and file the unredacted version under seal. A party seeking sealing must submit an application and supporting declaration explaining on a particularized basis why sealing is justified. The order warns that material introduced at trial is unlikely to remain sealed solely because it was previously designated confidential.
Recipients may use confidential discovery material only to prosecute or defend this action and related appeals, not for other purposes or litigation. The order also addresses subpoenas and other compulsory process, requiring notice to the producing party within specified time limits and allowing the producing party to bear the burden and expense of opposing disclosure if it chooses to do so.
Privilege and end of the order
Under Federal Rule of Evidence 502, producing privileged or work-product-protected material, whether accidentally or otherwise, does not waive the protection in this case or another federal or state proceeding. If privileged material is inadvertently produced, the receiving party generally must return or destroy it within five business days after notice, while retaining the ability to challenge the privilege claim in court under seal.
Within 60 days after the final disposition of the action, including appeals, recipients must return or destroy confidential discovery material and certify that they have not kept copies or other reproductions. Lawyers specifically retained for the action may keep archival copies of specified case materials and work product, but those copies remain covered by the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.
Disposition
The court entered the stipulated protective order. The opinion does not decide the parties’ underlying claims or defenses.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.