Adelaar Developer, LLC v. ADCI Professional Corp., S.C.: No Trade‑Secret Predicate Needed for Model Confidentiality Orders Governing Use of Discovery

I. Introduction

This Third Department decision in Adelaar Developer, LLC v. ADCI Professional Corp., S.C., 2025 NY Slip Op 06942 (3d Dept Dec. 11, 2025), arises out of complex construction litigation over an allegedly defective waterpark project in Sullivan County. The plaintiffs, EPR Concord II, L.P. (owner) and Adelaar Developer, LLC (lessee/developer), sued various design and construction professionals. Those defendants in turn brought third‑party claims against subcontractors, including Stone Bridge Iron & Steel, Inc. (“Stone Bridge”), which became the third‑party defendant–appellant.

The appeal does not concern construction defects or liability. It concerns a narrow but important discovery issue: whether Supreme Court properly granted plaintiffs’ motion for a protective order adopting, with minor modifications, the Commercial Division’s model “Stipulation and Order for the Production and Exchange of Confidential Information” (22 NYCRR 202.70, Appendix F), over Stone Bridge’s objection.

The Third Department affirms. In doing so, it clarifies a point of statewide importance: when a protective order under CPLR 3103(a) merely regulates how produced discovery material is handled (confidentiality, limits on dissemination) but does not limit a party’s access to discovery, the movant need not satisfy the “two‑fold” trade‑secret test articulated in Jackson v Dow Chem. Co., 214 AD2d 827 (3d Dept 1995). The court also explicitly approves use of the Commercial Division model confidentiality order in non‑Commercial Division cases and delineates the relationship between such orders and the public’s presumptive right of access to court records.

II. Summary of the Opinion

The key holdings can be distilled as follows:

• Broad discretion under CPLR 3103(a): Supreme Court has wide latitude to issue protective orders “denying, limiting, conditioning or regulating” discovery to prevent “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.” Appellate courts will not disturb such decisions absent a clear abuse of discretion.
• Commercial Division model order endorsed: Supreme Court “providently exercised its discretion” in granting a protective order that largely mirrors the Commercial Division’s Appendix F model order, even though the case is not in the Commercial Division.
• Two‑tier confidentiality regime approved: The order’s structure—allowing parties to designate discovery as “Confidential” or “Highly Confidential” (attorneys’ eyes only), with defined categories of permitted recipients and challenge mechanisms—is valid and consistent with CPLR 3103(a).
• Jackson trade‑secret test inapplicable to use‑regulating orders: The “two‑fold analysis” from Jackson v Dow Chem. Co.—requiring a movant to show disclosure of trade secrets, then shifting burden to the nonmovant to show indispensability—applies to protective orders responding to discovery demands that would withhold or restrict disclosure. It does not apply where, as here, the order does not preclude disclosure but only dictates handling of materials after they are disclosed.
• No prejudice or deprivation of discovery: Because all parties still receive full, unredacted discovery, and any designation can be challenged in court, the protective order neither prejudices Stone Bridge nor deprives it of relevant evidence.
• No present conflict with public‑access presumption: The confidentiality order governs discovery exchanges, not public access to court filings. Sealing of court records requires a separate motion, so arguments about access are not yet ripe.
• Order affirmed: The Third Department finds no abuse of discretion and affirms Supreme Court’s order in full, with costs.

III. Factual and Procedural Background

A. Underlying Litigation

Plaintiff EPR Concord II, L.P. owns, and plaintiff Adelaar Developer, LLC leases and develops, a waterpark facility. They commenced an action in Supreme Court, Sullivan County, seeking monetary damages for allegedly defective design and construction of that waterpark. The defendants include ADCI Professional Corporation, S.C., Suffolk Construction Company, Inc., and others involved in the project.

The defendants, in turn, commenced third‑party actions against a range of subcontractors and suppliers, including Stone Bridge Iron & Steel, Inc. Those third‑party claims seek, in substance, indemnification and/or contribution for any liability the primary defendants might incur to plaintiffs.

B. The Disputed Confidentiality Stipulation

During discovery, plaintiffs circulated a proposed “Stipulation and Order for the Production and Exchange of Protected Information.” This stipulation closely tracked the Commercial Division’s model “Stipulation and Order for the Production and Exchange of Confidential Information” set out in 22 NYCRR 202.70 Appendix F, with only “certain minor adjustments.”

Every party except Stone Bridge agreed to the stipulation. Stone Bridge refused to consent, objecting to a regime in which parties could designate materials as “Confidential” or “Highly Confidential,” thereby restricting who could view those materials and how they could be used.

As a result, plaintiffs moved under CPLR 3103(a) for a protective order mirroring the proposed stipulation. Supreme Court (Galligan, J.) granted the motion over Stone Bridge’s opposition. Stone Bridge appealed to the Appellate Division, Third Department, arguing that Supreme Court abused its discretion.

C. Stone Bridge’s Core Objections

Stone Bridge advanced several interconnected arguments:

• Overbreadth and unilateral power: Stone Bridge contended that the order gave plaintiffs (and effectively all producing parties) unchecked ability to designate materials as confidential, limiting Stone Bridge’s ability to use and share discovery.
• Need for trade‑secret showing: Relying on cases like Jackson v Dow Chem. Co., Stone Bridge argued that a confidentiality order cannot be imposed unless the movant demonstrates that the material sought involves trade secrets, after which the nonmovant must show the information is indispensable.
• Prejudice and restriction of its defense: Stone Bridge claimed the order would prejudice its ability to defend itself—particularly by restricting dissemination of information to its own personnel.
• Undermining public access: Stone Bridge argued that such an order conflicts with the presumption of public access to court records, invoking decisions like Matter of Cyprium Therapeutics, Inc. [Curia Global, Inc.], 223 AD3d 1042 (3d Dept 2024).

The Third Department rejected these objections, finding the protective order a proper and measured exercise of Supreme Court’s discretion.

IV. Detailed Analysis

A. The Statutory Framework: CPLR 3103(a)

CPLR 3103(a) authorizes trial courts, “at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought,” to:

“make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”

The Third Department emphasizes two aspects of this provision:

• The power extends beyond merely “denying” or “limiting” discovery; it also explicitly includes “conditioning or regulating the use” of disclosure devices. The challenged order falls squarely within this “use‑regulating” category.
• Supreme Court enjoys broad discretion over discovery. Citing Melfe v Roman Catholic Diocese of Albany, N.Y., 196 AD3d 811, 813 (3d Dept 2021), and Jones v Memorial Sloan Kettering Cancer Ctr., 186 AD3d 1851, 1852 (3d Dept 2020), the court reiterates that discovery rulings will generally not be disturbed absent a “clear abuse of discretion.”

Thus, the appellate question is not whether the appellate court would have issued the same order in the first instance, but whether Supreme Court acted within the range of permissible options to prevent “prejudice” or “abuse” in the discovery process.

B. The Protective Order’s Structure

The order closely follows Appendix F of 22 NYCRR 202.70, the Commercial Division’s model confidentiality stipulation. The opinion provides a detailed description of its mechanics, which is significant because the court implicitly signals its approval of this model outside the Commercial Division.

1. Two Tiers of Protection

The order allows a producing party to designate discovery material as either:

• “Confidential”, or
• “Highly Confidential” (effectively, “attorneys’ eyes only”).

Confidential information covers:

“all [d]ocuments and [t]estimony, and all information contained therein, and other information designated as confidential, if such [d]ocuments or [t]estimony contain trade secrets, proprietary business information, competitively sensitive information or other information the disclosure of which would, in the good faith judgment of the [p]arty or, as appropriate, non-party designating the material as confidential, be detrimental to the conduct of that [p]arty's or non-party's business or the business of any of that [p]arty's or non-party's customers or clients.”

Highly Confidential information is a subset of confidential material:

“any ‘Confidential Information’ that is of such a private, sensitive, competitive or proprietary nature that present disclosure to persons other than those [specified in the order] would reasonably be expected to cause irreparable harm or materially impair the legitimate competitive position or interests of the [p]roducing [p]arty.”

2. Who May See “Confidential” vs. “Highly Confidential” Information

The order distinguishes between the two categories primarily by who may access them:

• “Confidential” information may be disclosed to, among others (subject to conditions):
  • “personnel of the [p]arties [who are] actually engaged in assisting in the preparation of [the] action for trial,”
  • outside and in‑house counsel and their staff,
  • expert witnesses and consultants,
  • trial and deposition witnesses (with safeguards),
  • the court and court personnel, and
  • any other person agreed to in writing by the producing party.
• “Highly Confidential” information is expressly for “counsels’ eyes only,” but it also may be shared with:
  • expert witnesses and consultants (under conditions),
  • the court and court personnel,
  • officers before whom depositions are taken,
  • trial and deposition witnesses (under safeguards), and
  • additional persons if the parties agree.

  The critical distinction is that party personnel (e.g., business employees) may not access “Highly Confidential” material absent consent or court order.

In both categories, broader dissemination is permitted only with the producing party’s written consent or by court order.

3. Designation and Challenge Procedures

The order contains several procedural mechanisms:

• Inadvertent non‑designation: A producing party that inadvertently fails to mark material as Confidential or Highly Confidential may correct the error by written notice “within a reasonable time.” The receiving party must then treat the materials as designated.
• Non‑party materials: A party may designate documents or information produced by a non‑party as confidential or highly confidential, ensuring protection for sensitive materials disclosed by subpoenaed third parties.
• Challenges to designations: A receiving party may contest any designation. If the parties cannot resolve the dispute, the challenging party may move the court to declassify specific documents. Thus, designation is not unilateral and unreviewable; it is subject to adversarial testing and judicial oversight.

4. Use in Depositions and Court Filings; Interaction with Sealing

The order also addresses how confidential material is used in litigation:

• Depositions: If confidential information is used at a deposition, the deponent must execute a written acknowledgment agreeing to be bound by the order.
• Court filings:
  • Any filing containing confidential or highly confidential information must initially be made in redacted form, while an unredacted version is provided to the court and parties either contemporaneously or beforehand.
  • A motion to seal may then be made. If no motion to seal is filed, the redacted filing must be replaced with an unredacted version.
  • If a motion to seal is denied, the redacted version likewise must be replaced by the unredacted version.

  This regime underscores that the confidentiality order operates at the discovery stage. Public access to court records remains governed by separate sealing motions, to be decided under the usual standards.

C. Precedents Cited and How They Are Used

The opinion weaves together several lines of New York precedent.

1. Cases Endorsing Confidentiality to Prevent Abuse

The court anchors its approval of the protective order in cases recognizing the need to safeguard sensitive information:

• Tymko v K‑Mart Discount Stores, 75 AD2d 987 (4th Dept 1980), lv dismissed 51 NY2d 708, 879 (1980) – The court quotes Tymko’s foundational principle: “material [that is] confidential in nature or information which is subject to abuse if widely disseminated should be accorded judicial safeguards where possible.” This quotation provides the normative justification for confidentiality regimes.
• Helm v Gwenn Lentine, M.D., P.C., 60 AD3d 632, 633 (2d Dept 2009) – Cited for the proposition that trial courts may condition disclosure upon confidentiality agreements and that such orders are upheld when appropriate.
• Mann v Cooper Tire Co., 33 AD3d 24, 36 (1st Dept 2006), lv denied 7 NY3d 718 (2006) – Also supports the principle that confidentiality agreements can and should be ordered where information is “subject to abuse if widely disseminated.”

These cases collectively support a general proposition: courts not only may but often should implement protective orders to prevent misuse of confidential or competitively sensitive information obtained through discovery.

2. Cases on Broad Discretion in Discovery Management

• Rote v Snyder, 195 AD3d 1130, 1131 (3d Dept 2021) – Confirms the broad authority under CPLR 3103(a) to shape discovery orders.
• Melfe v Roman Catholic Diocese of Albany, N.Y., 196 AD3d 811, 813 (3d Dept 2021) and Jones v Memorial Sloan Kettering Cancer Ctr., 186 AD3d 1851, 1852 (3d Dept 2020) – Emphasize that Supreme Court’s management of discovery will not be overturned absent a clear abuse of discretion.

By repeatedly invoking these authorities, the Third Department frames its task narrowly: to check for abuse, not to substitute its own view of the “best” discovery regime.

3. Cases Approving Confidentiality Orders Similar to the One at Issue

To show that such confidentiality orders are not novel, the court cites:

• Blum v New York Stock Exch., 263 AD2d 522, 523 (2d Dept 1999) – Upholding confidentiality restrictions in a commercial context.
• Schenectady Chems. v Imitec, Inc., 151 AD2d 804, 805 (3d Dept 1989) – Supporting protective orders in complex commercial/technical litigation.
• McLaughlin v G. D. Searle, Inc., 38 AD2d 810, 811 (1st Dept 1972) – One of the earlier recognitions that courts can condition disclosure of sensitive information on confidentiality.
• Butt v New York Med. Coll., 7 AD3d 744, 745 (2d Dept 2004) – Explicitly recognizes that a “confidentiality agreement may be imposed in the appropriate case if the material is subject to abuse if widely disseminated.”
• Herbenson v Carrols Corp., 101 AD3d 1220, 1221–1222 (3d Dept 2012) – Particularly important here; the court cites Herbenson for the proposition that a confidentiality order which does not deprive any party of discovery but simply keeps the information within the “confines of the litigation” is permissible and not unduly prejudicial.

These cases collectively show that such orders are familiar in New York practice and are regularly upheld so long as they do not cut off access to relevant discovery.

4. The “Two‑Fold Analysis” in Jackson v Dow Chemical and Its Limitation

Stone Bridge invoked Jackson v Dow Chem. Co., 214 AD2d 827 (3d Dept 1995), where the Third Department described a “two‑fold analysis” that “must [normally] be satisfied before an order of confidentiality may be granted”:

1. The movant must first show that the discovery demand would require disclosure of trade secrets; and
2. If that showing is made, the burden shifts to the nonmovant to demonstrate that the information is indispensable to support its case.

The Adelaar court acknowledges Jackson but holds that “this line of case law is inapplicable” here because:

• The present controversy does not concern a particular discovery demand aimed at trade secrets; instead, “we are not presented with a discovery demand.”
• The protective order “does not preclude disclosure but dictates how documents and information must be handled once disclosed.”

In other words, the trade‑secret framework in Jackson addresses whether certain information may be discovered at all or only under restricted conditions, whereas the order here addresses how information that is already discoverable is to be treated after production. That distinction is the pivotal doctrinal clarification in this opinion.

5. Cases Distinguishing Orders That Limit Discovery from Those That Regulate Use

The court underscores the Jackson distinction by contrasting this case with precedents such as:

• Ferolito v Arizona Beverages USA, LLC, 119 AD3d 642, 644 (2d Dept 2014) – Concerning discovery limits in a commercial dispute.
• Hodgson, Russ, Andrews, Woods & Goodyear v Isolatek Intl. Corp., 300 AD2d 1047, 1048 (4th Dept 2002) – Also involving trade‑secret concerns regarding production.
• Bristol, Litynski, Wojcik v Town of Queensbury, 166 AD2d 772, 773–774 (3d Dept 1990) and Curtis v Complete Foam Insulation Corp., 116 AD2d 907, 909 (3d Dept 1986) – Dealing with limitations on the scope or manner of discovery when sensitive information is at stake.

These cases deal with protective orders that either deny or significantly restrict discovery in the first place, justifying application of the Jackson trade‑secret analysis. By contrast, in Adelaar, “the challenged order does not deprive any party of the relevant discovery documentation but simply requires the parties to keep the information confidential within the confines of the litigation, subject to an ongoing process to lift any such restriction.”

The court also cites Backer & Assoc., LLC v PPB Eng’g & Sys. Design, Inc., 173 AD3d 1625, 1626–1627 (4th Dept 2019), with a “cf.” signal, suggesting some factual or doctrinal difference but underscoring that not all prior protective‑order rulings neatly govern the current context.

6. Public‑Access and Sealing Jurisprudence

When Stone Bridge invokes the presumption of access to court records, the Third Department cites:

• Matter of Cyprium Therapeutics, Inc. [Curia Global, Inc.], 223 AD3d 1042, 1044 (3d Dept 2024) – Recognizing the general presumption that court records are open to the public, subject to carefully scrutinized sealing orders.

The court distinguishes that line of authority by noting that the present order is not a sealing order at all. Instead, it preserves the possibility of later sealing motions, which will be evaluated independently. Thus, public‑access concerns are “not presently before us” in the context of this discovery appeal.

D. The Court’s Legal Reasoning Applied to the Parties’ Arguments

1. No Abuse of Discretion in Adopting the Model Order

The Third Department begins its substantive analysis by stressing that the order “largely mirrors” the Commercial Division’s model confidentiality order in Appendix F. On that basis, it holds that Supreme Court “providently exercised its discretion in granting plaintiffs’ motion for a protective order consistent with the terms of 22 NYCRR 202.70.”

This is an important signal: the Commercial Division’s model is effectively endorsed as a presumptively reasonable template for confidentiality orders in complex civil litigation, even in non‑Commercial Division parts.

2. Distinguishing Jackson and the Trade‑Secret Predicate

The court then addresses Stone Bridge’s reliance on Jackson’s two‑fold test. The critical move is to confine Jackson to cases in which the protective order limits or denies discovery in response to a demand that would otherwise compel production of trade secrets. Because the order here does neither—everyone still receives the documents, and no category of discoverable material is withheld—the Jackson framework does not apply.

Consequently, plaintiffs did not need to make any threshold showing that particular discovery demands implicated trade secrets, nor did Stone Bridge acquire a right to show “indispensability” of the information. The focus shifts from entitlement to discovery to responsible handling after disclosure.

3. Rejection of the “Unilateral Power” and “Prejudice” Arguments

Stone Bridge’s fear that plaintiffs (or any producing party) could designate virtually any material as confidential or highly confidential is addressed in two ways:

• Symmetry and reciprocity: The court emphasizes that “this power does not rest only in the hands of plaintiffs.” Any party—plaintiff, defendant, or third‑party defendant—may designate its own (or a non‑party’s) productions as confidential or highly confidential. Thus, the order is not one‑sided; it protects the interests of all producing parties, including Stone Bridge itself.
• Challenge mechanisms: If a receiving party believes an item is over‑designated, it may utilize the built‑in procedure for objections and, if necessary, “motion practice in the court” to declassify specific documents. Judicial review cabin’s any potential abuse. Conversely, if a party believes that an undesignated document should be treated as confidential or highly confidential, it may apply its own designation.

Because the order does not redline any categories of documents out of discovery, but merely subjects them to confidentiality, the court flatly states that it “does not create prejudice to defendants as Stone Bridge maintains.”

4. Addressing the Public‑Access Concern

As to Stone Bridge’s argument that the order “works against the presumption of access to court records,” the court responds that:

• The confidentiality order governs the exchange and limited use of discovery materials, not whether those materials, once filed, are sealed from the public.
• The order explicitly contemplates that any party or non‑party “may” move to seal documents that are to be filed. Until such a motion is made and decided, records remain governed by the usual access principles.
• Because no sealing motion is before the court, the merits of any future argument for or against sealing “are not presently before us.”

This demarcation between private discovery and public court files is central: private confidentiality agreements and protective orders do not themselves diminish the public’s presumptive right to access filed court records; that right is adjudicated separately on a motion to seal.

E. Clarifying Categories of Protective Orders and the Trade‑Secret Threshold

Doctrinally, the opinion draws a useful taxonomy of protective orders under CPLR 3103(a):

1. Orders that limit or deny discovery in whole or in part (e.g., barring certain topics, redacting portions of documents, refusing production unless stringent conditions are met). These often arise where trade secrets, privileged materials, or privacy concerns are directly implicated. Here, the Jackson “two‑fold analysis” is relevant: the movant must show trade‑secret status, and the requesting party must demonstrate indispensability.
2. Orders that regulate the handling and use of materials that are otherwise fully discoverable (e.g., confidentiality stipulations, counsel‑only access tiers, limits on dissemination outside the litigation). In this category, the information is produced in full, but conditions are placed on who may see it and how it may be used. For this second category—which describes the Adelaar order—the Jackson framework does not apply.

This distinction matters practically: a litigant resisting a use‑regulating confidentiality order cannot insist on the Jackson trade‑secret showing as a precondition. It will need to argue instead on grounds like overbreadth, unfair prejudice, or abuse of discretion—arguments that are harder to sustain when the order mirrors a widely used model and includes mechanisms for contesting designations.

F. Relationship Between Confidentiality Orders and Public Access to Court Records

The decision also clarifies the often‑blurred boundary between:

• Discovery confidentiality: agreements and orders governing how parties treat each other’s documents and information during pretrial exchanges; and
• Sealing of court records: judicial orders limiting public access to filed documents, which implicate First Amendment, common‑law, and statutory access principles.

The Adelaar order:

• Restricts parties from publicly disseminating designated materials obtained in discovery;
• Requires initial redaction when such materials are filed; but
• Expressly contemplates replacement of redacted filings with unredacted ones absent a granted sealing order.

Thus:

• A confidentiality designation under Appendix F does not itself justify sealing; a separate motion and judicial analysis are required.
• If no party is willing or able to justify sealing, the materials, once filed, become part of the public court record in unredacted form.

This ensures that confidentiality orders serve their proper function—reducing the risk of competitive and reputational harm from broad, uncontrolled dissemination during discovery—without pre‑empting the public’s right to scrutinize court proceedings.

V. Simplifying the Complex Concepts

1. Protective Order

A protective order is a court order that shapes how discovery occurs. Under CPLR 3103(a), it can:

• Limit what must be produced,
• Regulate how, when, and to whom materials are produced, and
• Control how produced materials may be used (e.g., for the litigation only, not for competitive business purposes or public dissemination).

Its goal is to prevent “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.”

2. “Confidential” vs. “Highly Confidential” (Attorneys’ Eyes Only)

• Confidential information is sensitive but can still be shared with:
  • Lawyers and their staff,
  • Party employees involved in the case,
  • Experts, and
  • Witnesses, under safeguards.
• Highly Confidential (counsels’ eyes only) information is so competitively or personally sensitive that it is generally shared only with:
  • Lawyers,
  • Experts, and
  • The court and deposition officers.

  Party employees normally cannot see Highly Confidential information unless everyone consents or the court orders otherwise.

3. Trade Secret and Competitively Sensitive Information

A trade secret is a type of confidential business information that:

• Derives independent economic value from not being generally known or readily ascertainable, and
• Is the subject of reasonable efforts to maintain its secrecy.

By contrast, “competitively sensitive” or “proprietary business” information may not rise to the level of a trade secret but can still significantly harm a party’s business or competitive position if widely shared (e.g., internal pricing models, customer lists, non‑public financials).

4. Motion to Seal and Presumption of Access

• A motion to seal asks the court to restrict public access to filed documents (for example, by redacting parts of the document or filing it under seal).
• New York law recognizes a presumption of public access to court records. That presumption can be overcome only with specific, compelling reasons (e.g., trade secrets, serious privacy concerns, risk of misuse).
• A confidentiality designation in discovery is not enough, by itself, to justify sealing; the party seeking sealing must make a legally sufficient showing and the court must make particularized findings.

VI. Practical Implications and Future Impact

A. For Trial Courts and Litigants in the Third Department

This decision effectively blesses the use of the Commercial Division’s Appendix F model confidentiality order in general civil litigation, including construction and other complex cases, even outside the Commercial Division. Trial courts in the Third Department can confidently:

• Adopt Appendix F (with case‑specific modifications) as a standard solution when parties cannot agree on confidentiality terms; and
• Reject arguments that such an order is per se improper absent a Jackson‑type trade‑secret showing, so long as the order does not curtail the scope of discovery itself.

For litigants, the decision:

• Encourages early agreement on confidentiality stipulations, knowing that courts may impose them even over objection if they track Appendix F.
• Reminds parties that confidentiality protections are reciprocal; resisting such an order may deprive the resisting party of a tool that could protect its own sensitive materials.
• Signals that objections based solely on speculation about over‑designation, without concrete prejudice or evidence that the order is unworkably one‑sided, are unlikely to succeed.

B. Clarifying the Role of Jackson v Dow Chemical

By confining Jackson’s “two‑fold analysis” to cases involving restrictions on whether discovery must be produced in the first place (especially trade‑secret disputes), the Adelaar decision limits its availability as a general attack on confidentiality regimes. Going forward:

• A party seeking to block production of alleged trade secrets may still invoke Jackson and demand a showing that the information is both a trade secret and indispensable.
• A party merely opposing a confidentiality stipulation that governs post‑disclosure use will have to argue within the more deferential abuse‑of‑discretion framework of CPLR 3103(a), with Jackson offering little help.

C. Impact on Non‑Parties and Third‑Party Discovery

The opinion’s approval of designation rights for non‑party materials (e.g., subpoenaed documents) is practically important. Companies and professionals who are not litigants but are drawn into discovery can:

• Expect that their proprietary documents, once produced, may be designated confidential or highly confidential and thereby protected from broad dissemination, and
• Take some comfort that standard form orders like Appendix F provide a predictable baseline for the treatment of their information.

D. Public Access and Transparency

From a transparency standpoint, the decision reaffirms that:

• Private confidentiality agreements and discovery protective orders are distinct from sealing orders;
• The presumption of access to court records remains intact and must be addressed in the context of actual sealing motions; and
• Courts should avoid conflating the need to facilitate candid, efficient discovery with decisions about what the public can see in the official record.

This separation helps maintain both robust private discovery and meaningful public oversight of judicial proceedings.

VII. Conclusion

Adelaar Developer, LLC v. ADCI Professional Corp., S.C. provides an important clarification in New York discovery practice. The Third Department holds that when a protective order under CPLR 3103(a) merely regulates the use and dissemination of materials that are otherwise fully discoverable—particularly under a two‑tier structure modeled on Commercial Division Appendix F—the movant is not required to satisfy the Jackson trade‑secret “two‑fold analysis.”

The court confirms that:

• Trial courts wield broad discretion to impose confidentiality agreements to prevent abuse of sensitive information;
• Model orders like Appendix F are an appropriate and judicially favored way to structure such protections, even outside the Commercial Division;
• Concerns about unilateral power and prejudice are mitigated by reciprocal designation rights and judicial review of disputed designations; and
• Discovery confidentiality orders are conceptually and legally distinct from sealing orders, leaving the public’s right of access to court records to be decided separately.

In complex commercial and construction litigation, this decision will likely encourage the routine use of structured confidentiality regimes and reduce the leverage of parties who resist them on generalized grounds. At the same time, it preserves key safeguards: full adversarial access to discovery, judicial oversight of designations, and an intact presumption of public access to court filings. The opinion thus strikes a practical balance between protecting sensitive information and maintaining both fairness among litigants and transparency in the judicial process.