Complying with Confidentiality Orders

Protective orders are entered in some cases to protect proprietary information and documents. They often contain language requiring the person receiving the documentation to return or destroy it at the end of a case. Is that language really that important?

In Carter v. Otis Elevator Co., 2014 U.S. Dist. LEXIS 42176 (D. Nev. Mar. 28, 2014) a customer claimed injuries due to an elevator stopping. She retained C. Stephen Carr as her expert witness. The parties executed a confidentiality agreement stating

7. Each expert, agent, consultant, or other representative who is permitted by any attorney for the parties to view, examine, scan or otherwise inspect the documents subject to this confidentiality agreement shall agree in writing to be bound by this agreement. A copy of this confidentiality agreement shall also be delivered to each of the above-listed persons by the attorneys for the parties.

9. All documents produced subject to this confidentiality agreement, and any copies, lists or summaries thereof, shall be returned within thirty days after trial and/or other final resolution of the above-entitled action to the party who produced the documents, unless such documents or other items cannot be returned as a result of the party’s introduction of such documents or items as evidence at trial, or unless such documents or items are otherwise unavailable for return.

Dr. Carr received Otis confidential documents. He also

signed an affidavit by which he agreed to be bound by the terms of the parties’ confidentiality order. Dr. Carr attested that “upon the resolution of this case, I herewith agree to return to Joseph Benson, Esq. copies of all confidential documentation previously provided including any copies, list, or summaries thereof. I specifically agree not to shred and/or dispose of any such confidential documents.”

The case settled. Dr. Carr returned one document. When asked to return other documents, he wrote “[t]here were no other materials worthy of anything more than a trip to the trash can and everything else was discarded weeks ago.” In short, Dr. Carr disposed of Otis confidential documents despite the language of the protective order and affidavit he executed.

Otis was not happy and sought to hold Dr. Carr in contempt. “It is clear that Dr. Carr and Otis have a longstanding relationship with Dr. Carr as an adverse expert witness, and Otis as the defendant in over one hundred cases throughout the country.” The court concluded Dr. Carr did not deliberately violate the protective order.

However, what does concern the court is that for an experienced expert witness accustomed to reading court orders in hundreds of cases, Dr. Carr not only failed to read the confidentiality order carefully; he also signed an affidavit which specifically required him to acknowledge his obligation to return the documents. Then, when Dr. Carr was asked to locate the confidential documents and return them, his reply was dismissive and flippant: “There were no other materials worthy of anything more than a trip to the trash can and everything else was discarded weeks ago.”

Instead of holding Dr. Carr in contempt, the court provided alternative relief. “Dr. Carr is admonished that his appearance as an expert witness in cases filed in this court could be jeopardized if he engages in similar conduct in the future.” He was also sanctioned $2,000.

A word to the wise: be careful with confidentiality agreements.