The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SIMON PROPERTY GROUP, L.P
Plaintiff,
Case No.: 1:21-cv-07850 (PKC)
v.
U.S. BANK NATIONAL ASSOCIATION,
Defendant.
STIPULATED PROTECTIVE ORDER
WHEREAS, Plaintiff SIMON PROPERTY GROUP, L.P. and Defendant U.S. BANK, N.A.,
hereafter referred to as “the Parties,” believe that certain information that is or will be encompassed
by discovery demands by the Parties involves the production or disclosure of trade secrets,
confidential business information, or other proprietary information;
WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
Federal Rule of Civil Procedure 26(c):
THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
1. Each Party may designate as confidential for protection under this Order, in whole or in part,
any document, information or material that constitutes or includes, in whole or in part,
confidential or proprietary information or trade secrets of the Party or a Third Party to whom
the Party reasonably believes it owes an obligation of confidentiality with respect to such
document, information or material (“Protected Material”). Protected Material shall be
designated by the Party producing it by affixing a legend or stamp on such document,
information or material as follows: “CONFIDENTIAL.” The word “CONFIDENTIAL”
shall be placed clearly on each page of the Protected Material (except deposition and hearing
transcripts) for which such protection is sought. For deposition and hearing transcripts, the
word “CONFIDENTIAL” shall be placed on the cover page of the transcript (if not already
present on the cover page of the transcript when received from the court reporter) by each
attorney receiving a copy of the transcript after that attorney receives notice of the
designation of some or all of that transcript as “CONFIDENTIAL.”
2. With respect to documents, information or material designated “CONFIDENTIAL” or
“RESTRICTED - ATTORNEYS’ EYES ONLY” (“DESIGNATED MATERIAL”),1
subject to the provisions herein and unless otherwise stated, this Order governs, without
limitation: (a) all documents, electronically stored information, and/or things as defined by
the Federal Rules of Civil Procedure; (b) all pretrial, hearing or deposition testimony, or
documents marked as exhibits or for identification in depositions and hearings; (c) pretrial
pleadings, exhibits to pleadings and other court filings; (d) affidavits; and (e) stipulations.
1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the class
of materials designated as “CONFIDENTIAL” or “RESTRICTED - ATTORNEYS’ EYES ONLY,”
both individually and collectively.
All copies, reproductions, extracts, digests and complete or partial summaries prepared from
any DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL
and treated as such under this Order.
3. A designation of Protected Material (i.e., “CONFIDENTIAL” or “RESTRICTED -
ATTORNEYS’ EYES ONLY”) may be made at any time. Inadvertent or unintentional
production of documents, information or material that has not been designated as
DESIGNATED MATERIAL shall not be deemed a waiver in whole or in part of a claim for
confidential treatment. Any party that inadvertently or unintentionally produces Protected
Material without designating it as DESIGNATED MATERIAL may request destruction of
that Protected Material by notifying the recipient(s), as soon as reasonably possible after the
producing Party becomes aware of the inadvertent or unintentional disclosure, and providing
replacement Protected Material that is properly designated. The recipient(s) shall then
destroy all copies of the inadvertently or unintentionally produced Protected Materials and
any documents, information or material derived from or based thereon.
4. “CONFIDENTIAL” documents, information and material may be disclosed only to the
following persons, except upon receipt of the prior written consent of the designating party,
upon order of the Court, or as set forth in paragraph 11 herein:
(a) outside counsel of record in this Action for the Parties;
(b) employees of such counsel assigned to and reasonably necessary to assist such
counsel in the litigation of this Action;
(c) in-house counsel for the Parties who either have responsibility for making decisions
dealing directly with the litigation of this Action, or who are assisting outside counsel
in the litigation of this Action, and the assistants or paralegals thereof;
(d) up to and including three (3) designated representatives of each of the Parties to the
extent reasonably necessary for the litigation of this Action, except that either party
may in good faith request the other party’s consent to designate one or more
additional representatives, the other party shall not unreasonably withhold such
consent, and the requesting party may seek leave of Court to designate such
additional representative(s) if the requesting party believes the other party has
unreasonably withheld such consent;
(e) outside consultants or experts (i.e., not existing employees or affiliates of a Party or
an affiliate of a Party) retained for the purpose of this litigation, provided that: (1)
such consultants or experts are not presently employed by the Parties hereto for
purposes other than this Action; (2) before access is given, the consultant or expert
has completed the Undertaking attached as Exhibit A hereto and the same is served
upon the producing Party with a current curriculum vitae of the consultant or expert
at least ten (10) days before access to the Protected Material is to be given to that
consultant or Undertaking to object to and notify the receiving Party in writing that
it objects to disclosure of Protected Material to the consultant or expert. The Parties
agree to promptly confer and use good faith to resolve any such objection. If the
Parties are unable to resolve any objection, the objecting Party may file a motion
with the Court within fifteen (15) days of the notice, or within such other time as the
Parties may agree, seeking a protective order with respect to the proposed disclosure.
The objecting Party shall have the burden of proving the need for a protective order.
No disclosure shall occur until all such objections are resolved by agreement or Court
order;
(f) independent litigation support services, including persons working for or as court
reporters, graphics or design services, jury or trial consulting services, and
photocopy, document imaging, and database services retained by counsel and
reasonably necessary to assist counsel with the litigation of this Action; and
(g) the Court and its personnel.
5. A Party shall designate documents, information or material as “CONFIDENTIAL” only
upon a good faith belief that the documents, information or material contains confidential or
proprietary information or trade secrets of the Party or a Third Party to whom the Party
reasonably believes it owes an obligation of confidentiality with respect to such documents,
information or material.
6. Documents, information or material produced pursuant to any discovery request in this
Action, including but not limited to Protected Material designated as DESIGNATED
MATERIAL, shall be used by the Parties only in the litigation of this Action and shall not
be used for any other purpose. Any person or entity who obtains access to DESIGNATED
MATERIAL or the contents thereof pursuant to this Order shall not make any copies,
duplicates, extracts, summaries or descriptions of such DESIGNATED MATERIAL or any
portion thereof except as may be reasonably necessary in the litigation of this Action. Any
such copies, duplicates, extracts, summaries or descriptions shall be classified
DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
7. To the extent a producing Party believes that certain Protected Material qualifying to be
designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
limitation, the producing Party may designate such Protected Material “RESTRICTED --
ATTORNEYS’ EYES ONLY.”
8. For Protected Material designated RESTRICTED -- ATTORNEYS’ EYES ONLY, access
to, and disclosure of, such Protected Material shall be limited to individuals listed in
paragraphs 4(a-c) and (e-g); provided, however, that access by in-house counsel pursuant to
paragraph 4(c) be limited to in-house counsel who exercise no competitive decision-making
authority on behalf of the client.
9. Nothing in this Order shall require production of documents, information or other material
that a Party contends is protected from disclosure by the attorney-client privilege, the work
product doctrine, or other privilege, doctrine, or immunity. If documents, information or
other material subject to a claim of attorney-client privilege, work product doctrine, or other
privilege, doctrine, or immunity is inadvertently or unintentionally produced, such
production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
any such privilege, doctrine, or immunity. Any Party that inadvertently or unintentionally
produces documents, information or other material it reasonably believes are protected under
the attorney-client privilege, work product doctrine, or other privilege, doctrine, or immunity
may obtain the return of such documents, information or other material by promptly
notifying the recipient(s) and providing a privilege log for the inadvertently or
unintentionally produced documents, information or other material. The recipient(s) shall
gather and return all copies of such documents, information or other material to the
producing Party, except for any pages containing privileged or otherwise protected markings
by the recipient(s), which pages shall instead be destroyed and certified as such to the
producing Party.
10. There shall be no disclosure of any DESIGNATED MATERIAL by any person authorized
to have access thereto to any person who is not authorized for such access under this Order.
The Parties are hereby ORDERED to safeguard all such documents, information and
material to protect against disclosure to any unauthorized persons or entities.
11. Nothing contained herein shall be construed to prejudice any Party’s right to use any
DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have
access to the DESIGNATED MATERIAL by virtue of his or her employment with the
designating party, (ii) identified in the DESIGNATED MATERIAL as an author, addressee,
or copy recipient of such information, (iii) although not identified as an author, addressee,
or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of
business, seen such DESIGNATED MATERIAL, (iv) a current or former officer, director
or employee of the producing Party or a current or former officer, director or employee of a
company affiliated with the producing Party; (v) counsel for a Party, including outside
counsel and in-house counsel; (vi) an independent contractor, consultant, and/or expert
retained for the purpose of this litigation; (vii) court reporters and videographers; (viii) the
Court; or (ix) other persons entitled hereunder to access to DESIGNATED MATERIAL.
DESIGNATED MATERIAL shall not be disclosed to any other persons unless prior
authorization is obtained from counsel representing the producing Party or from the Court.
12. Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
deposition or hearing transcript, designate the deposition or hearing transcript or any portion
thereof as “CONFIDENTIAL” or “RESTRICTED - ATTORNEY’ EYES ONLY” pursuant
to this Order. Access to the deposition or hearing transcript so designated shall be limited in
accordance with the terms of this Order. Until expiration of the 30-day period, the entire
deposition or hearing transcript shall be treated as confidential.
13. In the event a party seeks to file with the Court any DESIGNATED MATERIAL subject to
protection under this Order, that party shall take appropriate steps to ensure that the
document receives proper protection from public disclosure, including: (a) filing a redacted
document with the consent of the party who designated the document as confidential; (b)
where appropriate (e.g., in relation to discovery and evidentiary motions), submitting the
document solely for in camera review; or (c) seeking permission to file the document under
seal by filing a motion for leave to file under seal.
14. Notwithstanding any other provision, no document may be filed with the Clerk under seal
without a further Order of this Court addressing the specific documents or portions of
documents to be sealed. Any application to seal shall be accompanied by an affidavit or
affidavits and a memorandum of law, demonstrating that the standards for sealing have been
met and specifically addressing the applicability of Lugosch v. Pyramid Co. of Onondaga,
435 F.3d 110, 119-120 (2d Cir. 2006) and any other controlling authority. Unless otherwise
ordered, a party seeking to file an opposing party’s confidential information shall so advise
the opposing party fourteen (14) days in advance specifying the precise portion of the
information the party seeks to use, the general purpose thereof and any redactions to which
the party does not object. Within seven (7) days thereafter, the party whose confidential
information is sought to be used may make an application to seal in accordance with this
Order, indicating the portion or portions of the information it seeks to have sealed. Nothing
herein is intended to alter or modify the applicability of Rule 5.2, Fed. R. Civ. P., to this
case. The redactions expressly authorized by Rule 5.2 may be made without further
application to the Court.
15. The Order applies to pretrial discovery. Nothing in this Order shall be deemed to prevent the
Parties from introducing any DESIGNATED MATERIAL into evidence at the trial of this
Action, or from using any information contained in DESIGNATED MATERIAL at the trial
of this Action, subject to any pretrial order issued by this Court.
16. A Party may request in writing to the other Party that the designation given to any
DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does not
agree to redesignation within ten (10) days of receipt of the written request, the requesting
Party may apply to the Court for relief. Upon any such application to the Court, the burden
shall be on the designating Party to show why its classification is proper. Such application
shall be treated procedurally as a motion to compel pursuant to Federal Rules of Civil
Procedure 37, subject to the Rule’s provisions relating to sanctions. In making such
application, the requirements of the Federal Rules of Civil Procedure and the Local Rules of
the Court shall be met. Pending the Court’s determination of the application, the designation
of the designating Party shall be maintained.
17. Each outside consultant or expert to whom DESIGNATED MATERIAL is disclosed in
accordance with the terms of this Order shall be advised by counsel of the terms of this
Order, shall be informed that he or she is subject to the terms and conditions of this Order,
and shall sign an acknowledgment that he or she has received a copy of, has read, and has
agreed to be bound by this Order. A copy of the acknowledgment form is attached as
Appendix A.
18. To the extent that any discovery is taken of persons who are not Parties to this Action (“Third
Parties”) and in the event that such Third Parties contended the discovery sought involves
trade secrets, confidential business information, or other proprietary information, then such
Third Parties may agree to be bound by this Order.
19. To the extent that discovery or testimony is taken of Third Parties, the Third Parties may
designate as “CONFIDENTIAL” or “RESTRICTED -- ATTORNEYS’ EYES ONLY” any
documents, information or other material, in whole or in part, produced or given by such
Third Parties. The Third Parties shall have ten (10) days after production of such documents,
information or other materials to make such a designation. Until that time period lapses or
until such a designation has been made, whichever occurs sooner, all documents,
information or other material so produced or given shall be treated as “CONFIDENTIAL”
in accordance with this Order.
20. Within thirty (30) days of final termination of this Action, including any appeals, all
DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes,
summaries, descriptions, and excerpts or extracts thereof (excluding excerpts or extracts
incorporated into any privileged memoranda of the Parties and materials which have been
admitted into evidence in this Action), shall at the producing Party’s election either be
returned to the producing Party or be destroyed. The receiving Party shall verify the return
or destruction by affidavit furnished to the producing Party, upon the producing Party’s
request.
21. The failure to designate documents, information or material in accordance with this Order
and the failure to object to a designation at a given time shall not preclude the filing of a
motion at a later date seeking to impose such designation or challenging the propriety
thereof. The entry of this Order and/or the production of documents, information and
material hereunder shall in no way constitute a waiver of any objection to the furnishing
thereof, all such objections being hereby preserved.
22. Any Party knowing or believing that any other party is in violation of or intends to violate
this Order and has raised the question of violation or potential violation with the opposing
party and has been unable to resolve the matter by agreement may move the Court for such
relief as may be appropriate in the circumstances. Pending disposition of the motion by the
Court, the Party alleged to be in violation of or intending to violate this Order shall
discontinue the performance of and/or shall not undertake the further performance of any
action alleged to constitute a violation of this Order.
23. Production of DESIGNATED MATERIAL by each of the Parties shall not be deemed a
publication of the documents, information and material (or the contents thereof) produced
so as to void or make voidable whatever claim the Parties may have as to the proprietary and
confidential nature of the documents, information or other material or its contents.
24. Nothing in this Order shall be construed to effect an abrogation, waiver or limitation of any
kind on the rights of each of the Parties to assert any applicable discovery or trial privilege.
25. Each of the Parties shall also retain the right to file a motion with the Court (a) to modify
this Order to allow disclosure of DESIGNATED MATERIAL to additional persons or
entities if reasonably necessary to prepare and present this Action and (b) to apply for
additional protection of DESIGNATED MATERIAL.
So ORDERED and SIGNED this _17_ day of Nov, 2021.
P. KEVIN CASTEL
UNITED STATES DISTRICT JUDGE
AGREED TO:
/s/ Elizabeth M. Manno /s/ J. Thomas Vitt
Elizabeth M. Manno J. Thomas Vitt (MN Bar #0183817)*
VENABLE LLP Sanjiv P. Laud (MN Bar #0395115)*
600 Massachusetts Avenue, N.W. Joshua M. Taylor (MN Bar #0401929)*
Washington, D.C. 20001 JONES DAY
T: (202) 344-4000 90 South Seventh Street
F: (202) 344-8300 Suite 4950
emmanno@venable.com Minneapolis, MN 55402
Telephone: +1.612.217.8800
Timothy Carroll Facsimile: +1.844.345.3178
VENABLE LLP tvitt@jonesday.com
227 W. Monroe Street, Suite 3950 slaud@jonesday.com
Chicago IL 60606 joshuataylor@jonesday.com
T: (312) 820-3400
F: (312) 820-3401 Marlee R. Hartenstein (PA Bar #326079)*
tyjcarroll@venable.com JONES DAY
500 Grant Street
Thomas John Welling Suite 4500
VENABLE LLP Pittsburgh, PA 15219
1270 Avenue of Americas Telephone: +1.412.301.3939
New York, NY 10020 Facsimile: +1.412.394.7959
212-503-0558 mhartenstein@jonesday.com
Email: tywelling@venable.com
Stuart W. Yothers (SY2001)
Counsel for Plaintiff Simon Property Group, | JONES DAY
LP. 250 Vesey Street
New York, New York 10281
Telephone: +1.212.326.3893
Fascimile: = +1.212.755.7306
syothers@jonesday.com
* admitted pro hac vice
Attorneys for Defendant U.S. Bank National
Association
1]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SIMON PROPERTY GROUP, L.P
Plaintiff,
Case No.: 1:21-cv-07850 (PKC)
v.
U.S. BANK NATIONAL ASSOCIATION,
Defendant.
APPENDIX A
UNDERTAKING OF EXPERTS OR CONSULTANTS REGARDING
PROTECTIVE ORDER
I, , declare that:
1. My address is
My current employer is .
My current occupation is .
2. I have received a copy of the Protective Order in this action. I have carefully read and
understand the provisions of the Protective Order.
3. I will comply with all of the provisions of the Protective Order. I will hold in confidence,
will not disclose to anyone not qualified under the Protective Order, and will use only for
purposes of this action any information designated as “CONFIDENTIAL” or
“RESTRICTED -- ATTORNEYS’ EYES ONLY” that is disclosed to me.
4. Promptly upon termination of these actions, I will return all documents and things
designated as “CONFIDENTIAL” or “RESTRICTED -- ATTORNEYS’ EYES ONLY”
that came into my possession, and all documents and things that I have prepared relating
thereto, to the outside counsel for the party by whom I am employed.
5. I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the
Protective Order in this action.
I declare under penalty of perjury that the foregoing is true and correct.
Signature Date: