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In re September 11 Litigation

July 30, 2009

IN RE SEPTEMBER 11 LITIGATION


The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.

OPINION AND ORDER DENYING MOTION TO SET ASIDE CONFIDENTIALITY DESIGNATIONS

On October 29, 2007, the Personal Injury & Wrongful Death Plaintiffs moved to set aside all confidentiality designations made by the Aviation Defendants with respect to documents produced in the course of discovery. They withdrew the motion without prejudice on March 19, 2008, but renewed it on January 14, 2009. The motion is joined by the Property Damage & Business Loss Plaintiffs, the World Trade Center Properties Plaintiffs, and, as intervenors, the New York Times Company and the Reporters Committee for Freedom of the Press.*fn1 The parties appeared before me on March 25, 2009 for oral argument on the motion. For the reasons described below and those stated on the record, I hold that the designations of confidentiality shall remain in effect. Accordingly, I deny the motion.

On March 30, 2004, I issued a Confidentiality Protective Order ("CPO") in 21 MC 97, which was applied to 21 MC 101 on August 12, 2005. The CPO, which was submitted jointly by the parties, created a procedure by which any party may designate as confidential documents that it produces during discovery. Paragraph 2.1 of the CPO defines the "Confidential Information" that may be designated:

'Confidential Information' shall mean and include, without limitation, any information that concerns or relates to confidential and proprietary information, trade secrets, other confidential technical information, research or marketing information, financial records and analyses, agreements and business relationships, non-public commercial, financial, pricing, budgeting and/or accounting information, non-public information about existing and potential customers, marketing studies, performance and projections, non-public business strategies, decisions and/or negotiations, personnel compensation, evaluations and other employment information, and confidential proprietary information about affiliates, parents, subsidiaries and third-parties with whom the parties to this action have or have had business relationships.

Paragraph 3.1 imposes a "good faith" requirement on the designating party:

Claims of confidentiality will be made only with respect to documents, information or other materials that the asserting party in good faith believes are within the definition set forth in subparagraph 2.1 of this Confidentiality Protective Order. Objections to such claims made pursuant to paragraph 5 shall also be made in good faith.

Paragraph 5.1 describes how another party may challenge a designation of confidentiality:

Any party objecting to a designation of Confidential Information, including objections to portions of designations of multipage documents, shall notify in writing, within one hundred twenty (120) days of service of the document designated as Confidential Information, the designating party and all other parties of the objection, specifically identifying each document that the objecting party in good faith believes should not be designated as Confidential Information, and providing a brief statement of the grounds for such belief. In accordance with the Federal Rules governing discovery disputes, the objecting and the designating parties thereafter shall confer within seven (7) days after the date of such objection in an attempt to resolve their differences. If the parties are unable to resolve their differences, the designating party shall have fourteen (14) days after the conference concludes to file with the court a motion to maintain the Confidential Information designation. . . . All documents, information and other materials initially designated as Confidential Information shall be treated as Confidential Information in accordance with this Order unless and until the Court rules otherwise . . . . If a designating party elects not to make such a motion with respect to documents, information or other materials to which an objection had been made, the designation shall be deemed withdrawn. If such a motion is made, the moving party shall bear the burden of proving that the document, information or other material is Confidential Information pursuant to subparagraph 2.1 of this Confidentiality Protective Order.

Plaintiffs argue that the Aviation Defendants have abused the CPO by designating nearly their entire document discovery as confidential, and propose that I vacate the CPO and make all discovery public, except for information marked as Sensitive Security Information ("SSI") by the Transportation Security Administration ("TSA").*fn2 The Aviation Defendants argue that over-designating documents as confidential is common, even within this litigation, and that Plaintiffs have not abided by the objection procedure of the CPO. In essence, the parties dispute the propriety of making the bulk of the Aviation Defendants' document discovery public at this stage of the case.

This dispute requires me to determine which of two legal standards governs Plaintiffs' motion. Typically, to obtain a protective order, a party must show good cause. Fed. R. Civ. P. 26(c)(1) provides that a court "may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." It applies both to the issuance and continuation of a protective order. See In re "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 142 (2d Cir. 1987) ("The party seeking to prevent dissemination had the burden of showing that good cause existed for continuation of the order with respect to the discovery material in question."). The crucial requirement, good cause, exists "when a party shows that disclosure will result in a clearly defined, specific and serious injury." In re Terrorist Attacks on Sept. 11, 2001, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006).

Once a protective order is in place, however, the applicable standard is that of Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979). Martindell requires a plaintiff seeking to modify a protective order to show "improvidence in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling need." Id. Importantly, this heightened standard applies only if a party has "reasonably relied" on the protective order. SEC v. TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001) ("It is . . . presumptively unfair for courts to modify protective orders which assure confidentiality and upon which the parties have reasonably relied."); see AT&T Corp. v. Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005). "An examination of Second Circuit case law reveals the following factors are relevant when determining whether a party has reasonably relied on the protective order: (1) the scope of the protective order; (2) the language of the order itself; (3) the level of inquiry the court undertook before granting the order; and (4) the nature of reliance on the order." In re EPDM Antitrust Litig., No. 3:03md1542 (SRU), 2009 U.S. Dist. LEXIS 5591, at *29 (D. Conn. Jan. 26, 2009). In particular, the Court of Appeals has noted that protective orders "that are on their face temporary or limited may not justify reliance by the parties," and so may not qualify for the Martindell standard. TheStreet.com, 273 F.3d at 231.

I hold that the Martindell standard applies to Plaintiffs' motion because the Aviation Defendants have reasonably relied on the CPO. Their reliance has been reasonable because Plaintiffs have never objected to the Aviation Defendants' confidentiality designations within 120 days, as required by Paragraph 5.1 of the CPO. Had Plaintiffs done so, the CPO would have shifted the burden to the Aviation Defendants to justify those designations. However, as the periods have lapsed with no objections, the Aviation Defendants have become entitled to rely on the CPO in settling cases, producing documents and witnesses for depositions, and reconciling discovery disputes. See Allen v. City of New York, 420 F. Supp. 2d 295, 300-01 (S.D.N.Y. 2006) ("The classic situation in which a party 'relies' on a protective order is where the party creates material during the course of litigation on the understanding that it will be kept confidential."). Plaintiffs do not address their failures to object within 120 days of particular confidentiality designations. In fact, they have not challenged any designations through the procedure established by the CPO, which they proposed with the Aviation Defendants in 2004. They note that they filed their initial motion to set aside designations promptly in October 2007, after the Aviation Defendants had produced only 50,000 pages of discovery. However, they cannot explain why they have ignored the CPO procedure, and why they seek to set aside the Aviation Defendants' designations now, after about one million pages have been produced.

Moreover, it is not feasible for me to review the Aviation Defendants' confidentiality designations as to so many documents. For instance, The Boeing Company notes in a supplemental brief that it has produced over 1.7 million pages of document discovery, 99% of which was created after September 11, 2001, and argues that that this production contains clearly confidential information, including design information blueprints, internal test reports, contract negotiations, third party documents (e.g., trade secrets of component manufacturers), customer inquiries, and employee personal information. In response to this logistical concern, Plaintiffs suggest that I vacate the CPO entirely, citing the Aviation Defendants' alleged abuses, and make public one million pages of discovery. However, the Aviation Defendants have trusted in their confidentiality stamps, which have allowed the parties to resolve discovery disputes among themselves without my intervention. The CPO and its objection procedure have created certainty with respect to the risk of publicity. As a result, the litigation has moved forward. If Plaintiffs want the discovery materials in this case to become public now, before trial and the attendant evidentiary determinations, they should not have agreed to the CPO in 2004, or, alternatively, they should have agreed to it and abided by its objection procedure.

I acknowledge that one reason why some of the Plaintiffs, particularly the three Wrongful Death Plaintiffs, say they continue to pursue their claims is to expose information about the state of aviation security at the time of the terrorist attacks. However, such a record will be established at a public trial of those claims, if there is a trial, and if such information is relevant. Pretrial civil discovery produces an array of material, some of which may be admissible if ...


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