Fincher v. City of Newburgh

Background

All parties requested a protective order under Federal Rule of Civil Procedure 26(c). A protective order is a court order governing the treatment and disclosure of information exchanged during discovery. The parties sought protection for nonpublic and competitively sensitive information that might be disclosed in the case. The parties agreed to the order's terms through counsel, and the court found good cause for issuing a tailored order governing the pretrial phase.

Confidential information

The order allows a producing party to designate material as confidential only when it reasonably and in good faith believes the material contains specified protected information. The listed categories include 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 about an individual; and other categories the court later designates as confidential.

The producing party or its counsel must clearly mark confidential portions of discovery materials and provide a version with the confidential information redacted for future public use. Special procedures apply to deposition transcripts and exhibits. During the 30 days after a deposition, the entire transcript must be treated as confidential. A producing party may also later designate previously produced material as confidential by notifying prior recipients in writing.

Permitted disclosures and use

Confidential discovery material may be disclosed only to persons listed in the order. Those persons include the parties and their insurers, counsel retained for the case and their staff, outside vendors working on the case, mediators or arbitrators, certain people identified on a document, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court and its personnel. Before disclosure to specified mediators, witnesses, or experts, the person must receive the order and sign the required nondisclosure agreement.

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 other 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 with the court must publicly file a redacted version and file the unredacted version under seal. A party filing under seal must also submit a letter brief and supporting declaration explaining, on a particularized basis, why sealing remains justified. The court retains discretion over whether to give confidential treatment to material submitted in connection with a motion or other proceeding and warns that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation before trial. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court's individual practices. A party may also request additional disclosure limits, such as an attorneys'-eyes-only designation, through the same process.

Privilege and end of the order

If privileged or work-product-protected information is accidentally disclosed, the disclosure does not waive the protection under the order. The receiving party must return or destroy the material within five business days after notice and provide counsel's certification. The producing party must then provide a privilege log, and the receiving party may ask the court to order production. The producing party retains the burden of establishing that the material is privileged or otherwise protected.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party's permission, destroy confidential material and certify that they have not kept copies or other reproductions. Counsel specifically retained for the action may keep an archival copy of certain case materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Disposition

Judge Philip M. Halpern entered the stipulated confidentiality and protective order. The order governs discovery confidentiality and related filings; it states that it is not a waiver of objections or privileges and is not a ruling on the admissibility of documents, testimony, or other evidence at trial.