PKF OConnor Davies LLP v. Giordano

Background

The parties jointly requested a confidentiality agreement and 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. The court found good cause for an appropriately tailored order governing the pretrial phase of the action.

Confidentiality designations and permitted disclosures

The order allows a producing party to designate as confidential only material that it reasonably and in good faith believes includes specified categories of previously non-disclosed information. These categories include financial information, information about ownership or control of a nonpublic company, business or marketing plans, personal or intimate information, and other information the court later gives confidential status.

People subject to the order generally may not disclose confidential discovery material except as the order permits. Permitted recipients include the parties and their insurers, counsel and litigation-support personnel, outside vendors, mediators or arbitrators, certain people identified in documents, potential witnesses, experts and specialized advisers, deposition stenographers, and the court. Before receiving confidential material, mediators or arbitrators, potential witnesses, and experts or specialized advisers must receive the order and sign a nondisclosure agreement.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order also requires recipients to take precautions against unauthorized or accidental disclosure.

Court filings and disputes

A party filing confidential material with the court must publicly file a redacted version and file the unredacted version under seal. A party seeking to file material under seal must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to give confidential treatment to material submitted in connection with motions or other proceedings and states that it is unlikely to seal material introduced into evidence at trial.

A party may object to a confidentiality designation before trial by giving written notice specifying the grounds. The order provides that unresolved disputes will be presented to the court under the judge’s individual practices. It also establishes a similar procedure for requesting additional disclosure limits, such as attorneys’-eyes-only treatment in extraordinary circumstances.

Privilege and return of materials

The order provides that an inadvertent disclosure of material subject to attorney-client privilege or work-product protection does not waive or forfeit that protection. After receiving a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide a certification. The disclosing party must then provide a privilege log, while the receiving party may ask the court to compel production. The disclosing party retains the burden of establishing that the material is privileged or protected.

Within 60 days after final disposition of the action, including appeals, recipients must return confidential discovery material or destroy it if the producing party permits. They must certify that they have not retained copies or other reproductions. Lawyers specifically retained for the action may keep archival copies of certain case materials, but those copies remain subject to the order.

Ruling

Judge Philip M. Halpern ordered the parties and all other persons covered by the order to comply with its terms, subject to contempt. The order survives termination of the litigation, and the court retains jurisdiction over persons subject to it to enforce the obligations and impose sanctions for contempt.