The opinion
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
UNITED STATES DISTRICT COURT DATE FILED:_12/18/19
SOUTHERN DISTRICT OF NEW YORK
□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ TE
Joseph Fasanello,
Plaintiff, —: 1:19-cev-05281-GHW
-v- ; STIPULATED
: CONFIDENTIALITY
United Nations International School, : AGREEMENT AND
PROTECTIVE ORDER
Defendant. :
rent Siig ienaniciati asia
GREGORY H. WOODS, District Judge:
WHEREAS, all of the parties to this action (collectively, the “Parties” and each individually, a
“Party”) request that this Coutt 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, this Coutt finds that good cause exists for issuance of an appropriately tailored
confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that the Patties to this action, their respective officers, agents,
servants, employees, and attorneys, any other person in active concert or 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:
1, With respect to “Discovery Material” (i.¢., information of any kind produced or
disclosed in the course of discovery in 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 Patty or person producing or disclosing Discovery Material (each, “Producing
Patty”) may designate as Confidential only the portion of such material that it reasonably and in good
faith believes consists of:
(a) previously non-disclosed financial information (including without limitation
profitability reports or estimates, percentage fees, design fees, royalty rates, minimum
guatantee 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
(ec) medical and legal records, including medical files and reports; or
(f) any other category of information given confidential status by this Court after the date
of this Order,
x 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.
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 limitation, 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 portion(s) of
the Discovery Material as Confidential. In addition, the Producing Party shall provide each other Party
ait 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.
Ts 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 Patties to this action, their insurers, and counsel to their insurers;
(b) counsel retained specifically for this action, including any paralegal, clerical, or
other aselatane that such outside counsel employs and assigns to this matter;
(c) outside vendors or service providers (such as copy-setvice 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 fen anneeed as Exhibit A hereto;
(ec) 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;
(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
subpatagtaphs 7(d), 7(f), ot 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
ot she has tead this Order and agrees to be bound by its terms. Said counsel must retain each signed
Non-Disclosure Agreement, hold it in esctow, and produce it to opposing counsel either before such
person is petmitted to testify (at deposition or trial) or at the conclusion of the case, whichever comes
first. □
□ 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 papets 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 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
secks 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 Practices.
12. Any Patty 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.
1: 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
putpose ot in any other litigation proceeding. Nothing contained in this Order, however, will affect
ot restrict the tights 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,
ot 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, ot other legal notice if the Producing Party deems it appropriate to do so.
15: Each petson 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. Inadvertently Disclosed Information.
(a) If, a Producing Patty becomes aware that it has inadvertently produced information
ot materials that are protected by the attorney-client privilege, work product immunity,
ot other privilege or immunity (“Inadvertently Disclosed Information”), such
disclosure shall not constitute or be deemed a waiver or forfeiture of any claim or
ptivilege or work product protection with respect to the Inadvertently Disclosed
Information and its subject matter. The Producing Party should promptly notify the
Receiving Party in writing of the inadvertent production. Once a Receiving Party
receives notice in writing of the inadvertent production, it shall make reasonable
efforts to gather up copies of the information and materials that were distributed to
others and shall return all copies of such inadvertently produced material within three
(3) business days of receiving such notice. Any notes of summaries referring or relating
to any such inadvertently or mistakenly produced material subject to a claim or
privilege or immunity shall be destroyed forthwith. Nothing herein shall prevent the
Receiving Party from challenging the propriety of the attorney-client privilege or work
product immunity or other applicable privilege designation by submitting a challenge
to the Court, The Producing Party bears the burden of establishing the privileged
nature of any inadvertently produced information or materials. The Receiving Party
shall refrain from distributing or otherwise using the inadvertently disclosed
information or materials purpose until the discoverability of the materials is agreed by
the parties ot resolved by the Court. Notwithstanding the foregoing, a Receiving Party
may use the inadvertently produced information or materials solely to respond to a
motion by the Producing Party seeking return or destruction of such information or
matetials. If a Receiving Party becomes aware that it is in receipt of information of
matetials which is knows or reasonably should know is privileged, Counsel for the
Receiving Party shall immediately take reasonable steps to (i) stop reading such
information ot materials, (ii) notify Counsel for the Producing Party of such
information or materials, (iii) collect all copies of such information or materials, (iv)
retutn such information or materials to the Producing Party, and (v) otherwise
comport themselves with Rule 4.4(b) of the New York Rules of Professional Conduct.
17. 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 materials contain Confidential Discovery Material. Any such archival copies that contain of
constitute Confidential Discovery Material remain subject to this Order,
18. 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.
19, 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: BiG a Date [2d (qd
—SO_ ORDERED.
Dated: December 18, 2019 / {
New York, New York GRE H. WOODS
United States District Judge
Exhibit A
to Stipulated Confidentiality
Agreement and Protective Order
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
Joseph Fasanello, :
Plaintiff, : 1:19-cv-05281-GHW
-v- : STIPULATED
CONFIDENTIALITY
United Nations International School, : AGREEMENT AND
: PROTECTIVE ORDER
Defendant(s). :
ennenneeenneeneennee 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 Ordet, 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: