United States v. Pushkal

Background

The United States brought this action against Thomas Pushkal, Jennifer Vanover, Edward Pushkal, Frances Pushkal, and Maplewood Warmbloods, LLC. The opinion text is a stipulated confidentiality agreement and protective order, not a decision on the underlying claims. All parties, through counsel, requested an order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase.

Terms of the Order

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing party may designate material as “Subject to Protective Order” when it reasonably and in good faith believes the material includes specified categories of confidential information, including previously undisclosed financial information, information about ownership or control of a nonpublic company, business plans, information protected by privacy or other legal provisions, and information protected by the Privacy Act.

People subject to the order may disclose protected discovery only to specified recipients, including the parties, insurers and their counsel, counsel retained for the case, certain vendors, mediators or arbitrators, authors and recipients identified on documents, certain witnesses, experts and advisers, deposition stenographers, and the court. Witnesses, experts, advisers, mediators, and arbitrators must generally sign a nondisclosure agreement before receiving the material.

The order allows parties to object to confidentiality designations and to request additional disclosure limits. Protected material may be used only to prosecute or defend this action and related appeals, not for business, competitive, or other litigation purposes. The order does not waive objections to discovery or privileges and does not decide whether evidence will be admissible at trial.

The order sets procedures for filing protected material with the court. Parties must publicly file redacted versions and file unredacted versions under seal. Anyone seeking to seal documents must file a letter brief and supporting declaration providing a particularized justification. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or proceeding, and the order states that the court is unlikely to seal material introduced into evidence at trial.

The order also addresses inadvertent disclosure of attorney-client privileged or attorney-work-product material. Such disclosure does not automatically waive the protection. After a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days, while the producing party must provide a privilege log within five business days after notification. The receiving party may ask the court to compel production, and the producing party retains the burden of establishing privilege or protection.

Within 60 days after final disposition of the action, including appeals, recipients must generally return or destroy protected discovery and certify that they have not retained copies or other reproductions. Lawyers specifically retained for the action may keep certain archival materials, which remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions.

Ruling

Judge Cathy Seibel entered the stipulated confidentiality and protective order. The order authorizes the United States to disclose certain information that might otherwise be restricted by the Privacy Act, subject to other applicable privileges, statutes, regulations, or authorities. It governs the handling of protected discovery but does not resolve the merits of the case or the admissibility of evidence.