The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SYDNEY S. YAMASAKI, Case No.: 1:21-cv-02158 (JPO)
Plaintiff,
v. PROTECTIVE ORDER
SONDER USA INC, METRO LOFT
MANAGEMENT LLC, 20 BROAD STREET
OWNER LLC
Defendant.
Pursuant to this Court’s authority under Rule 26(c)(1) to issue an order for good cause, to
protect a party from annoyance, embarrassment, oppression, or undue burden or expense, the
Court orders the following:
1. GOOD CAUSE STATEMENT
In this Action, Plaintiff Sydney Yamasaki may be required to disclose highly sensitive or
personal, or otherwise private and privileged documents and information relating to his medical
history and medical treatment related to the injuries he sustained as a result of the incident
described in the Complaint. Plaintiff may also be subject to deposition questions about and
related to this highly sensitive and personal information. In order to protect Plaintiff from certain
unwarranted annoyance, embarrassment, oppression, psychological harm, undue burden and
expense, the Court concludes it is reasonable and appropriate to enter this Protective Order to
regulate such disclosures and circumstances.
2. APPLICATION TO PLAINTIFF’S RECORDS
This Protective Order shall apply to documents and information relating to Plaintiff’s
medical history, medical treatment and healthcare.
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2. DEFINITIONS
2.1 “Confidential”: Information (regardless of how it is generated, stored or maintained)
or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c). The
designation “Confidential” pursuant to this Order shall be used only with respect to documents
and information relating to Plaintiff’s alleged physical injuries, medical treatment and health care
that the producing party believes, in good faith: (a) contains
private, non-public, confidential information that is not readily ascertainable through lawful
means by the public, (b) that if disclosed publicly would likely cause annoyance, embarrassment,
oppression, or infringement of privacy rights established by statute or regulation, or (c) that if
used for purposes other than those authorized by this Order could cause annoyance,
embarrassment, oppression or infringement of privacy rights established by statute or regulation.
2.2 “Confidential Medical Record”: Plaintiff’s medical records.
2.3 Designating Party: A Party that designates information or items that it produces in
disclosures or in responses to discovery as “CONFIDENTIAL” or “CONFIDENTIAL
MEDICAL RECORD.”
2.4 Disclosure or Discovery Material: All items or information regardless of the
medium or manner in which it is generated, stored, or maintained, that are produced or generated
in disclosures or responses to discovery in this action.
2.5 Expert: A person with specialized knowledge or experience in a matter pertinent to
the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
consultant in this action.
2.6 Non-Party: Any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.
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2.7 Counsel of Record: Attorneys who are not employees of a party to this action but are
retained to represent or advise a party to this action and have appeared in this action on behalf of
that party or are affiliated with a law firm which has appeared on behalf of that party.
2.8 Party: Any party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.9 Producing Party: A Party that produces Disclosure or Discovery Material in this
action.
2.10 Professional Vendors: Persons or entities that provide litigation support services
(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.
2.11 Protected Material: Any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL” or “CONFIDENTIAL MEDICAL RECORD.”
2.12 Receiving Party: A Party that receives Disclosure or Discovery Material from a
Producing Party.
3. SCOPE
The protections conferred by this Protective Order apply to any Protected Material (as
defined in section 2) in this Action to include (1) any information copied or extracted from
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
and (3) any testimony, conversations, or presentations by Parties or their Counsel that might
reveal Protected Material. Any use of Protected Material disclosed in Plaintiff’s deposition
testimony or any Protected Material for any purpose to include motion or at trial in this Action
shall be governed by a separate agreement or Order as set forth in Section 11.3, below.
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The entry of this Protective Order does not alter, waive, modify, or abridge any right,
privilege or protection otherwise available to any Party with respect to the discovery of matters,
including but not limited to any Party’s right to assert the attorney-client privilege, the attorney
work product doctrine, or other privileges, or any Party’s right to contest any such assertion.
4. DURATION
The restrictions imposed by this Protective Order shall remain in effect until Final
Disposition of the Action. Final disposition shall be deemed to be the later of (1) dismissal of all
claims and defenses in this Action, with or without prejudice; and (2) final judgment in this
Action after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews
of this action, including the time limits for filing any motions or applications for extension of
time pursuant to applicable law.
5. DEPOSITIONS
5.1 Whenever a deposition taken on behalf of any party hereto involves a disclosure of
Protected Material, the party disclosing the Protected Material shall designate on the record the
protected testimony as confidential. Upon the disclosure of the Protected Material, the following
provisions shall apply:
(a) The originals of the deposition transcripts and all copies thereof shall bear the lend
“Confidential” and subject to this Order, and not opened except for further order of
this Court.
6. DESIGNATING PROTECTED MATERIAL
6.1 Manner and Timing of Designations. Disclosure of Protected Material that qualifies
for protection under this Order must be clearly so designated before the material is disclosed or
produced. Designation in conformity with this Order requires: (a) for information in
documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions
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or other pretrial or trial proceedings), that the Producing Party affix the legend
“CONFIDENTIAL” or “CONFIDENTIAL MEDICAL RECORD” to each page that contains
protected material. If only a portion or portions of the material on a page qualifies for protection,
the Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
A Party that makes original documents or materials available for inspection need not
designate them for protection until after the inspecting Party has indicated which material it
would like copied and produced. During the inspection and before the designation, all of the
material made available for inspection shall be deemed “CONFIDENTIAL” or
“CONFIDENTIAL MEDICAL RECORD.” After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must determine which documents,
or portions thereof, qualify for protection under this Order. Then, before producing the specified
documents, the Producing Party must affix the “CONFIDENTIAL” or “CONFIDENTIAL
MEDICAL RECORD” legend to each page that contains Protected Material. If only a portion or
portions of the material on a page qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the margins). (b) for
testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party
identify on the record, before the close of the deposition, hearing, or other proceeding, all
protected testimony. (c) for information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on the exterior of
the container or containers in which the information or item is stored the legend
“CONFIDENTIAL” or “CONFIDENTIAL MEDICAL RECORD.” If only a portion or portions
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of the information or item warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s).
6.2 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the Designating Party’s
right to secure protection under this Order for such material. Upon timely correction of a
designation, the Receiving Party must make reasonable efforts to assure that the material is
treated in accordance with the provisions of this Order.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party in this action may use Protected Material in
connection with this action only for prosecuting, defending, or attempting to settle this litigation.
Such Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When this action has been terminated, a Receiving Party must
comply with the provisions of section 12 below (FINAL DISPOSITION). Protected Material
must be stored and maintained by a Receiving Party at a location and in a secure manner that
ensures that access is limited to the persons authorized under this Order.
7.2 Disclosure of “CONFIDENTIAL” or “CONFIDENTIAL MEDICAL RECORD”
Information or Items. Unless otherwise ordered by the court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item designated
“CONFIDENTIAL” or “CONFIDENTIAL MEDICAL RECORD” only to: (a) the parties'
counsel of record in this action; and employees of such counsel assigned to and necessary to
assist such counsel in the preparation or the trial of this action; (b) Experts (as defined in this
Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (c) the court
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and its personnel; (d) court reporters and their staff, professional jury or trial consultants, mock
jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation
and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (e)
during their depositions, witnesses in the action to whom disclosure is reasonably necessary and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
deposition testimony or exhibits to depositions that reveal Protected Material must be separately
bound by the court reporter and may not be disclosed to anyone except as permitted under this
Stipulated Protective Order. (f) the author or recipient of a document containing the information
or a custodian or other person who otherwise possessed or knew the information.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as “CONFIDENTIAL” or
“CONFIDENTIAL MEDICAL RECORD,” that Party must: (a) promptly notify in writing the
Designating Party. Such notification shall include a copy of the subpoena or court order; (b)
promptly notify in writing the party who caused the subpoena or order to issue in the other
litigation that some or all of the material covered by the subpoena or order is subject to this
Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating
Party whose Protected Material may be affected. If the Designating Party timely seeks a
protective order, the Party served with the subpoena or court order shall not produce any
information designated in this action as “CONFIDENTIAL” or “CONFIDENTIAL MEDICAL
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RECORD” before a determination by the court from which the subpoena or order issued, unless
the Party has obtained the Designating Party’s permission.
9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of all the terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
10. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
provision is not intended to modify whatever procedure may be established in an e-discovery
order that provides for production without prior privilege review. Pursuant to Federal Rule of
Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
communication or information covered by the attorney-client privilege or work product
protection, the parties may incorporate their agreement in the stipulated protective order
submitted to the court.
/ / /
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11. MISCELLANEOUS
11.1 Right to Further Relief. Nothing in this Order abridges the right of any person to
seek its modification by the court in the future.
11.2 Right to Assert Other Objections. By stipulating to the entry of this Protective
Order no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly,
no Party waives any right to object on any ground to use in evidence of any of the material
covered by this Protective Order.
11.3 Filing Protected Material. Without written permission from the Designating Party
or a court order secured after appropriate notice to all interested persons, a Party may not file in
the public record in this action any Protected Material. Protected Material may only be filed
under seal pursuant to a court order authorizing the sealing of the specific Protected Material at
issue.
12. FINAL DISPOSITION
Within 20 days after the final disposition of this action, as defined in paragraph 4, each
Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or entity, to the
Designating Party) by the 20 day deadline that (1) identifies (by category, where appropriate) all
the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or any other format reproducing or
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capturing any of the Protected Material. If a Receiving Party’s document management system
prevents destruction of the Protected Material, the Receiving Part can, in lieu of destruction,
provide an affirmation that (1) the party will continue to abide by the terms set forth in this
Protective Order after the final disposition of the case; and (2) the documents will be destroyed
in adherence with the firms’ document retention policy.
Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and
consultant and expert work product, even if such materials contain Protected Material. Any such
archival copies that contain or constitute Protected Material remain subject to this Protective
Order as set forth in Section 4 (DURATION)
IT IS SO ORDERED.
Dated: August 6, 2021
J. PAUL OETKEN
United States District Judge
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THENELL LAW GROUP, P.C.
12909 SW 68" Parkway, Suite 290
Portland, Oregon 97223
Telephone: (503) 372-6450
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, ______________________ [print or type full name], of ______________________
[print or type full address], declare under penalty of perjury that I have read in its entirety and
understand the Stipulated Protective Order that was issued by the United States District Court for
the Southern District of New York on ______________________ in the case of Yamasaki v.
Sonder, et al. (Case No.: USDC 1:21-cv-02158). I agree to comply with and to be bound by all
the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so
comply could expose me to sanctions and punishment in the nature of contempt.
I solemnly promise that I will not disclose in any manner any information or item that is
subject to this Stipulated Protective Order to any person or entity except in strict compliance
with the provisions of this Order. I further agree to submit to the jurisdiction of the United States
District Court for the Southern District of New York for the purpose of enforcing the terms of
this Stipulated Protective Order, even if such enforcement proceedings occur after termination of
this action.
I understand that I can be held in contempt of court if I fail to abide by all terms of the
Stipulation and Order of Protection and Confidentiality. I further understand that monetary
sanctions, in an amount to be determined by the Court, may be imposed against me if I fail to
abide by said terms.
Date: ______________________
City and State where sworn and signed: ______________________
Printed name:
Signature:
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