The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LESLIE J. LEVINE, solely in his capacity
as trustee of THE MARVIN H. SCHEIN
DESCENDANTS’ TRUST,
JMF
Judgment Creditor, Case No. 15-CV-1738 (SAS)
–against – (PROPOSED) PROTECTIVE
ORDER
Michael D. Brown,
Judgment Debtor.
District
_____J_E_S_S_E__ M__. _F_U_R__M__A_N___________, United States Magistrate Judge.
The Court having found that good cause exists for issuance of an appropriately tailored
confidentiality order governing the judgment enforcement phase of this action, and whereas Judgment
Debtor’s attorneys, Garcia Rainey Blank & Bowerbank LLP have not responded to counsel for
Judgment Creditor’s November 9, 2019 communication proposing a Stipulated Protective Order, it is
hereby ORDERED that any person subject to this Order – including without limitation the parties to
this action, their attorneys, representatives, agents, experts, and consultants, acting as such; all third
parties providing discovery in this action; and all other interested persons with actual or constructive
notice of this Order shall adhere to the following terms, upon pain of contempt:
Discovery Materials May Be Designated as Confidential
1. Any person subject to this Order who receives from any other person any “Discovery Material”
(i.e., information of any kind provided in the course of post-judgment discovery in this action)
that is designated as “Confidential” pursuant to the terms of this Order shall not disclose such
Confidential Discovery Material to anyone else except as expressly permitted hereunder.
2. All material designated as “Confidential” and produced to Plaintiff’s counsel pursuant to the
Stipulated Protective Order in Case No. 2:15-cv-09453 in the United Stated District Court,
Central District of California, Western Division shall be deemed Confidential Discovery
Material and shall be subject to the same restrictions specified in this Order.
3. The person producing Discovery Material may designate as “Confidential” any portion thereof
that contains non-public business, commercial, financial, or personal information, the public
disclosure of which is either restricted by law or would likely, in the good faith opinion of the
producing person, seriously harm the producing person’s business, commercial, financial, or
personal interests or cause the producing person to violate his, her, or its privacy or
confidentiality obligations to others. Where the confidential portion is reasonably separable
from the non-confidential portion, via redaction or otherwise, only the confidential portion shall
be so designated.
4. With respect to the confidential portion of any Discovery Material other than deposition
transcripts and exhibits, the producing person or that person’s counsel may designate such
portion as “Confidential” by stamping or otherwise clearly marking as “Confidential” the
document or protected portion in a manner that will not interfere with legibility or audibility.
Deposition testimony may be designated as “Confidential” either on the record during the
deposition or in writing within five (5) business days of receipt of the transcript. If so designated,
the final transcript of the designated testimony shall be bound in a separate volume and marked
“Confidential Information Governed by Protective Order” by the reporter.
Who May Receive Confidential Materials
5. No person subject to this Order, other than the producing person, shall disclose any Confidential
Discovery Material to any other person whomsoever, except to:
(a) the parties to this action;
(b) counsel retained specifically for this action, including any paralegal, clerical, or other
assistant employed by such counsel and assigned specifically to work on this action;
(c) counsel for Marvin H. Schein Descendants’ LLC, assignee of the judgment in the above-
captioned action docketed with the Clerk of the Court of the United States District Court,
Southern District of New York, on June 19, 2015;
(d) as to any document, its author, its addressee, and any other person shown on the face of
the document as having received a copy;
(e) any witness who counsel for a party in good faith believes may be called to testify at
deposition in this action, provided such person has first executed a Non-Disclosure
Agreement in the form annexed hereto;
(f) any person retained by a party to serve as an expert witness or consultant 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 hereto;
(g) stenographers and video technicians engaged to transcribe or record depositions
conducted in this action;
(h) independent photocopying, graphic production services, or other litigation support
services employed by the parties or their counsel to assist in this action, including
computer service personnel performing duties in relation to a computerized litigation
system;
(i) the Court and its staff; and
(j) any other person whom the producing person, or other person designating the Discovery
Material “Confidential,” agrees in writing may have access to such Confidential
Discovery Material.
6. Prior to the disclosure of any Confidential Discovery Material to any person referred to in
subparagraphs 4(d) or 4(e) above, such person shall be provided by counsel with a copy of this
Order and shall sign a Non-Disclosure Agreement, in the form annexed hereto, stating that that
person has read this Order and agrees to be bound by its terms. Counsel shall retain each signed
Non-Disclosure Agreement, hold it in escrow, and produce it to opposing counsel prior to such
person being permitted to testify at deposition.
Objection to Designation
7. Any person who either objects to any designation of confidentiality, or who, by contrast,
requests still further limits on disclosure (such as “attorneys’ eyes only,” reserved for
extraordinary circumstances), may at any time serve upon the designating person and all other
parties a written notice stating with particularity the grounds of the objection or request. If
agreement cannot be reached promptly, counsel for all affected persons shall request a joint
telephone call with the Court to obtain a ruling.
Inadvertent Disclosure of Privileged Materials
8. Each person who has access to Confidential Discovery Material shall take all due precautions
to prevent the unauthorized or inadvertent disclosure of such material.
9. If, in connection with this litigation, and despite having taken reasonable steps to prevent the
disclosure of information that it claims is subject to a claim of attorney-client privilege or
attorney work product, a producing person inadvertently discloses information subject to a
claim of attorney-client privilege or attorney work product protection (“Inadvertently Disclosed
Information”), such disclosure, in itself, shall not constitute or be deemed a waiver or forfeiture
of any claim of privilege or work product protection with respect to the Inadvertently Disclosed
Information and its subject matter.
10. If a disclosing person makes a claim of inadvertent disclosure, all receiving persons shall, within
five (5) business days, return or destroy all copies of the Inadvertently Disclosed Information,
and provide a certification of counsel that all such information has been returned or destroyed.
11. Within five (5) business days of the notification that such Inadvertently Disclosed Information
has been returned or destroyed, the disclosing person shall produce a privilege log with respect
to the Inadvertently Disclosed Information.
12. If a receiving person thereafter moves the Court for an order compelling production of the
Inadvertently Disclosed Information, that motion shall be filed under seal, and shall not assert
as a ground for entering such an order the mere fact of the inadvertent production. The
disclosing person retains the burden of establishing the privileged or protected nature of any
Inadvertently Disclosed Information. Nothing in this Order shall limit the right of any party to
request an in camera review of the Inadvertently Disclosed Information.
Conclusion of Judgment Enforcement
13. This Order shall survive the conclusion of judgment enforcement. Within 30 days of the
conclusion of judgment enforcement, all Confidential Discovery Material and all copies thereof,
shall be promptly returned to the producing person, or, upon permission of the producing
person, destroyed.
14. This Court shall 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 ORDERED
Dated: December 9 , 2019
United States ct Judge
This Order binds the parties to treat as confidential the documents so classified. This Court,
however, has not reviewed the documents referenced herein; therefore, by so ordering this
Order, the Court makes no finding as to whether the documents are confidential. That
finding will be made, if ever, upon a document-by-document review pursuant to the
procedures set forth in the Court’s Individual Rules and Practices and subject to the
presumption in favor of public access to “judicial documents.” See generally Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). To that end, the Court
does not “so order” any provision to the extent that it purports to authorize the parties to file
documents under seal without a prior court order. See New York ex rel. Khurana v.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LESLIE J. LEVINE, solely in his capacity
as trustee of THE MARVIN H. SCHEIN
DESCENDANTS’ TRUST,
JMF
Judgment Creditor, Case No. 15-CV-1738 (SAS)
–against – NON-DISCLOSURE
AGREEMENT
Michael D. Brown,
Judgment Debtor.
I, [print name], 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 judgment enforcement phase of this 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.
Dated:
[Signature]