The opinion
USDC SDNY
DOCUMENT
UNITED STATES DISTRICT COURT toon
SOUTHERN DISTRICT OF NEW YORK DATE FILED. 11/14/2019 □
ROBKIEM BROWN ET AL.,
Plaintiffs, ee
; CONFIDENTIALITY
‘agains PROTECTIVE ORDER
THE CITY OF NEW YORK, ET AL., 19-CV-03375 (GHW)
Defendants. (OTW)
estes monet ements essere pesca mai a inicio ae
GREGORY H. WOODS, District Judge
WHEREAS, all of the parties to this action (collectively, the “Parties” and each
individually, a “Party”) request that this Court issue a protective order pursuant to Federal
Rule of Civil Procedure 26(c) to protect the confidentiality of nonpublic and competitively
sensitive information that they may need to disclose in connection with discovery in this
action;
WHEREAS, the parties, through counsel, agree to the following terms; and
WHEREAS, the Court finds that good cause exists for the issuance of an
appropriately tailored confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that the Parties to this action, their respective
officers, agents, servants, employees, and attorneys, any other person in active concert of
participation with any of the foregoing, and all other persons with actual notice of this Order will
adhere to the following terms, upon pain of contempt:
l. With respect to “Discovery Material” (i.e, information of any kind
produced or disclosed in the course of discovery of this action) that a person has designated as
“Confidential” pursuant to this Order, no person subject to this Order may disclose such
Confidential Discovery Material to anyone else except as expressly permitted hereunder.
2. The Party or person producing or disclosing Discovery Material (each,
“Producing Party”) may designate as Confidential only the portion of such material that it
reasonably and in good faith believes consists of:
(a) previously nor-disclosed financial information (including without
limitation profitability reports or estimates, percentage fees, design
fees, royalty rates, minimum guarantee payments, sales reports, and
sale margins);
(b) previously non-disclosed material relating to ownership or control of
any non-public company;
(c) previously non-disclosed business plans, product-development
information, or marketing plans;
(d) any information of a personal or intimate nature regarding any
individual; or
(e) any other category of information given confidential status by this
Court after the date of this Order.
on With respect to the Confidential portion of any discovery Material other
than deposition transcripts and exhibits, the Producing Party or its counsel may designate such
portion as “Confidential” by: (a) stamping or otherwise clearly marking as “Confidential” the
protected portion in a manner that will not interfere with legibility or audibility; and (b)
producing for future public use another copy of said Discovery Material with the confidential
information redacted.
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4, A Producing Party or its counsel may designate deposition exhibits or
portions of deposition transcripts as Confidential Discovery Material either by: (a) indicating on
the record during the deposition that a question calls for Confidential information, in which case
the reporter will bind the transcript of the designated testimony in a separate volume and mark
it as “Confidential Information Governed by Protective Order;” or (b) notifying the reporter and
all counsel of record, in writing, within 30 days after a deposition has concluded, of the specific
pages and lines of the transcript that are to be designated “Confidential,” in which case all
counsel receiving the transcript will be responsible for marking the copies of the designated
transcript in their possession or under their control as directed by the Producing Party or that
person’s counsel. During the 30-day period following a deposition, all Parties will treat the
entire deposition transcript as if it had been designated Confidential.
5. If at any time before the termination of this action a Producing Party
realizes that it should have designated as Confidential some portion(s) of Discovery Material
that it previously produced without a Confidential designation, the Producing Party may so
designate such material by notifying all Parties in writing. Thereafter, all persons subject to this
Order will treat such designated portions(s) of the Discovery Material as confidential. In
addition, the Producing Party shall provide each other Party with replacement versions of such
discovery Material that bears the “Confidential” designation within two business days of
providing such notice.
6. Nothing contained in this Order will be construed as: (a) a waiver by a
Party or person of its right to object to any discovery request; (b) a waiver of any privilege or
protection; or (c) a ruling regarding the admissibility at trial of any document, testimony, or
other evidence.
7. Where a Producing Party has designated Discovery Material as
Confidential, other persons subject to this Order may disclose such information only to the
following persons:
(a) the Parties to this action, their insurers, and counsel to their insurers;
(b) counsel retained specifically for this action, including any paralegal,
clerical, or other assistant that such outside counsel employs and
assigns to this matter;
(c) outside vendors or service providers (such as copy-service providers
and document-management consultants) that counsel hire and assign to
this matter;
(d) any mediator or arbitrator that the Parties engage in this matter or that
this Court appoints, provided such person has first executed a Non-
Disclosure Agreement in the form annexed as Exhibit A hereto;
(e) as to any document, its author, its addressee, and any other person
indicated on the face of the document as having received a copy;
(f) any witness who counsel for a Party in good faith believes may be
called to testify at trial or deposition in this action, provided such
person has first executed a Non-Disclosure Agreement in the form
annexed as Exhibit A hereto;
(g) any person a Party retains to serve as an expert witness or otherwise
provide specialized advice to counsel in connection with this action,
provided such person has first executed a Non-Disclosure Agreement
in the form annexed as Exhibit A hereto;
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(h) stenographers engaged to transcribe depositions the Parties conduct in
this action; and
(i) this Court, including any appellate court, its support personnel, and
court reporters.
8. Before disclosing any Confidential Discovery Material to any person
referred to in subparagraphs 7(d), 7(f), or 7(g) above, counsel must provide a copy of this Order
to such person, who must sign a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto stating that he or she has read this Order and agrees to be bound by its terms. Said
counsel must retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to
opposing counsel either before such person is permitted to testify (at deposition or trial) or at
the conclusion of the case, whichever comes first.
9. This Order binds the Parties and certain others to treat as Confidential
any Discovery Materials so classified. The Court has not, however, made any finding regarding
the confidentiality of any Discovery Materials, and retains full discretion to determine whether
to afford confidential treatment to any discovery Material designated as Confidential hereunder.
All persons are placed on notice that the Court is unlikely to seal or otherwise afford
confidential treatment to any Discovery Material introduced into evidence at trial, even if such
material has previously been sealed or designated as Confidential.
10. In filing Confidential Discovery Material with this Court, or filing
portions of any pleadings, motions, or other papers that disclose such Confidential Discovery
Material (“Confidential Court Submission”), the Parties shall publicly file a redacted copy of
the Confidential Court Submission via the Electronic Case Filing System. In accordance with
Rule 4(A) of the Court’s Individual Rules of Practice in Civil Cases, the Parties shall file an
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unredacted copy of the Confidential Court Submission under seal with the Clerk of this Court,
and the Parties shall serve this Court and opposing counsel with unredacted courtesy copies of
the Confidential Court Submission. In accordance with Rule 4(A) of this Court’s Individual
Rules of Practice in Civil Cases, any Party that seeks to file Confidential Discovery Material
under seal must file an application and supporting declaration justifying—on a particularized
basis—the sealing of such documents. The parties should be aware that the Court will unseal
documents if it is unable to make “specific, on the record findings...demonstrating that closure
is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006),
11. Any Party who objects to any designation of confidentiality may at any
time before the trial of this action serve upon counsel for the Producing Party a written notice
stating with particularity the grounds of the objection. If the Parties cannot reach agreement
promptly, counsel for all affected parties will address their dispute to this Court in accordance
with paragraph 2(C) of this Court’s Individual Practice.
12. Any Party who requests additional limits on disclosure (such as
“attorneys’ eyes only” in extraordinary circumstances), may at any time before the trial of this
action serve upon counsel for the recipient Parties a written notice stating with particularity the
grounds of the request. If the Parties cannot reach agreement promptly, counsel for all affected
Parties will address their dispute to this Court in accordance with Rule 2(c) of this Court’s
Individual Rules of Practice in Civil Cases.
13. Recipients of Confidential Discovery Material under this Order may use
such material solely for the prosecution and defense of this action and any appeals thereto, and
not for any other purpose or in any other litigation proceeding. Nothing contained in this Order,
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however, will affect or restrict the rights of any Party with respect to its own documents or
information produced in this action.
14. Nothing in this Order will prevent any Party from producing any
Confidential Discovery Material in its possession in response to a lawful subpoena or other
compulsory process, or if required to produce by law or by any government agency having
jurisdiction, provided that such Party gives written notice to the Producing Party as soon as
reasonably possible, and if permitted by the time allowed under the request, at least 10 days
before any disclosure. Upon receiving such notice, the Producing Party will bear the burden to
oppose compliance with the subpoena, other compulsory process, or other legal notice if the
Producing Party deems it appropriate to do so.
15. Each person who has access to Discovery Material designated as
Confidential pursuant to this Order must take all due precautions to prevent the unauthorized or
inadvertent disclosure of such material.
16. Within 60 days of the final disposition of this action—including all
appeals—all recipients of Confidential Discovery Material must either return it—including all
copies thereof—to the Producing Party, or, upon permission of the Producing Party, destroy
such material—including all copies thereof. In either event, by the 60-day deadline, the
recipient must certify its return or destruction by submitting a written certification to the
Producing Party that affirms that it has not retained any copies, abstracts, compilations,
summaries, or other forms of reproducing or capturing any of the Confidential Discovery
Material. Notwithstanding this provision, the attorneys that the Parties have specifically
retained for this action may retain an archival copy of all pleadings, motion papers, transcripts,
expert reports, legal memoranda, correspondence, or attorney work product, even if such
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materials contain Confidential Discovery Material. Any such archival copies that contain or
constitute Confidential Discovery Material remain subject to this Order.
17. This Order will survive the termination of the litigation and will continue
to be binding upon all persons subject to this Order to whom Confidential Discovery Material is
produced or disclosed.
18. This Court will retain jurisdiction over all persons subject to this Order to
the extent necessary to enforce any obligations arising hereunder or to impose sanctions for any
contempt thereof.
SO STIPULATED AND AGREED
Dated: Nov, |S _, 2019
New York, New York
ELLIOT H. FULD, ESQ. JAMES E. JOHNSON
Attorney for Plaintiff Corporation Counsel of the
930 Grand Concourse City of New York
Suite 1G Attorney for Defendants City of New York,
Bronx, New York 10451 O'Neill and Longe
100 Church Street, Room 3-204
4 7 New York, New York 10007
By iB: Didi CERO
Elliot H. Fuld, Esq. “Katherine J. Weall, Esq.
Senior Counsel
SO ORDERED:
HON. ie ee H. WOODS
UNITED STATES DISTRICT JUDGE
Dated; November 14, 2019
New York, New York
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Exhibit A to Stipulated
Confidentiality Agreement
and Protective Order
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBKIEM BROWN ET AL.,
Plaintiffs NON-DISCLOSURE
, AGREEMENT
against: 19-CV-03375 (GHW)
THE CITY OF NEW YORK, ET AL., (OTW)
Defendants.
ee ee ee ee enn □□□ □□□ nen nee =X
I, , acknowledge that I have read and understand the
Protective Order in this action governing the non-disclosure of those portions of Discovery
Material that have been designated as Confidential. I agree that I will not disclose such
Confidential Discovery Material to anyone other than for purposes of this litigation and that at
the conclusion of the litigation I will return all discovery information to the Party or attorney
from whom I received it. By acknowledging these obligations under the Protective Order, I
understand that I am submitting myself to the jurisdiction of the United States District Court for
the Southern District of New York for the purpose of any issue or dispute arising hereunder and
that my willful violation of any term of the Protective Order could subject me to punishment for
contempt of Court.
Name:
Date:
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