The opinion
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT DOC #:
SOUTHERN DISTRICT OF NEW YORK DATE FILED: 6/1/2022
SHANI FELDMAN AND TAL DEKKERS,
Case No. 1:22-cv-02643-AT-RWL
Plaintiffs,
vs.
ZOETOP BUSINESS CoO., LTD. d/b/a SHEIN
and ROMWE,
Defendant.
STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER
ARCTIN/ERAQOQRARS
WHEREAS, the Parties having agreed to the following terms of confidentiality, and the
Court having found that good cause exists for the issuance of an appropriately tailored
confidentiality order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, it is hereby
ORDERED that the following restrictions and procedures shall apply to the information and
documents exchanged by the parties in connection with the pre-trial phase of this action:
1. A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary, or
private information for which special protection from public disclosure and from use for any
purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby
stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties
acknowledge that this Order does not confer blanket protections on all disclosures or responses
to discovery and that the protection it affords from public disclosure and use extends only to the
limited information or items that are entitled to confidential treatment under the applicable legal
principles. The parties further acknowledge, as set forth in Section 12.3, below, that this
Stipulated Protective Order does not entitle them to file confidential information under seal;
Section 12.3 sets forth the procedures that must be followed and the standards that will be
applied when a party seeks permission from the court to file material under seal.
B. GOOD CAUSE STATEMENT
This action is likely to involve proprietary sales information, customer and pricing lists
and other valuable research, development, commercial, financial, and/or proprietary information
for which special protection from public disclosure and from use for any purpose other than
prosecution of this action is warranted. Such confidential and proprietary materials and
information consist of, among other things, confidential business or financial information,
information regarding confidential business practices, or other confidential research,
development, or commercial information, information otherwise generally unavailable to the
public, or which may be privileged or otherwise protected from disclosure under state or federal
statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of
information, to facilitate the prompt resolution of disputes over confidentiality of discovery
materials, to adequately protect information the parties are entitled to keep confidential, to ensure
that the parties are permitted reasonable necessary uses of such material in preparation for and in
the conduct of trial, to address their handling at the end of the litigation, and serve the ends of
justice, a protective order for such information is justified in this matter. It is the intent of the
parties that information will not be designated as confidential for tactical reasons and that
nothing be so designated without a good faith belief that it has been maintained in a confidential,
non-public manner, and there is good cause why it should not be part of the public record of this
case.
2. DEFINITIONS
2.1 Action: Feldman, et al. v. Zoetop Business Co., Ltd., Case No. 1:22-cv-02643-AT-
RWL.
2.2 Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.3 “CONFIDENTIAL” Information or Items: 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), and as specified above in the Good Cause Statement.
2.4 “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY” Information or Items:
information (regardless of how it is generated, stored or maintained) or tangible things for which
such designation is necessary to protect the interests of the client in information that is of such a
private, sensitive, competitive or proprietary nature that present disclosure to a party would
reasonably be expected to cause irreparable harm or materially impair the legitimate competitive
interests of the client.
2.5 Counsel: Outside Counsel of Record and House Counsel (as well as their support
staff).
2.6 Designating Party: a Party or Non-Party that designates information or items that it
produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.7 Disclosure or Discovery Material: all items or information, regardless of the medium
or manner in which it is generated, stored, or maintained (including, among other things,
testimony, transcripts, and tangible things), that are produced or generated in disclosures or
responses to discovery in this matter.
2.8 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.
2.9 House Counsel: attorneys who are employees of a party to this Action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
2.10 Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.
2.11 Outside 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, and includes support staff.
2.12 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).
2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this Action.
2.14 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.
2.15 Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY.”
2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.
3. SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material
(as defined above), but also (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 at trial shall be governed by the orders of the trial judge. This
Order does not govern the use of Protected Material at trial.
4. DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
order otherwise directs. 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 herein 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. DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or
Non-Party that designates information or items for protection under this Order must take care to
limit any such designation to specific material that qualifies under the appropriate standards. The
Designating Party must designate for protection only those parts of material, documents, items,
or oral or written communications that qualify so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept unjustifiably
within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited.
Designations that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to impose unnecessary
expenses and burdens on other parties) may expose the Designating Party to sanctions. If it
comes to a Designating Party’s attention that information or items that it designated for
protection do not qualify for protection, that Designating Party must promptly notify all other
Parties that it is withdrawing the inapplicable designation.
5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see,
e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure
or Discovery 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 or other pretrial or trial proceedings), that the Producing
Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL
legend”) or “HIGHLY CONFIDENTIAL” (herein after “HIGHLY CONFIDENTIAL 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).
A Party or Non-Party that makes original documents available for inspection need
not designate them for protection until after the inspecting Party has indicated which documents
it would like copied and produced. During the inspection and before the designation, all of the
material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL.” 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 legend” or “HIGHLY CONFIDENTIAL 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 depositions that the Designating Party identify the
Disclosure or Discovery Material on the record, before the close of the deposition 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 is stored the legend “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL.” If only a portion or portions of the information warrants
protection, the Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3 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.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
confidentiality at any time that is consistent with the Court’s Scheduling Order.
6.2 Meet and Confer. The Challenging Party shall make a good faith effort to resolve the
dispute through the meet and confer process.
6.3 The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass
or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party
to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality
designation, all parties shall continue to afford the material in question the level of protection to
which it is entitled under the Producing Party’s designation until the Court rules on the
challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or
produced by another Party or by a Non-Party in connection with this Action only for prosecuting,
defending, or attempting to settle this Action. Such Protected Material may be disclosed only to
the categories of persons and under the conditions described in this Order. When the Action has
been terminated, a Receiving Party must comply with the provisions of section 13 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” 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” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this Action;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff;
(f) professional jury or trial consultants, mock jurors, and Professional Vendors to
whom disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the Action
to whom disclosure is reasonably necessary provided: (1) the deposing party requests that the
witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted to keep any
confidential information unless they sign 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 may be
separately bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel, mutually
agreed upon by any of the parties engaged in settlement discussions.
7.3 Disclosure of “HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY”
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
“HIGHLY CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this Action;
(b) In-House Counsel of the Receiving Party to whom disclosure is reasonably
necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff;
(f) professional jury or trial consultants, mock jurors, and Professional Vendors to
whom disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information; and
(h) any mediator or settlement officer, and their supporting personnel, mutually
agreed upon by any of the parties engaged in settlement discussions.
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
“HIGHLY CONFIDENTIAL,” 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 “HIGHLY CONFIDENTIAL” before a determination by the court from
which the subpoena or order issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking protection in
that court of its confidential material and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive from
another court.
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party in this
Action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
connection with this litigation is protected by the remedies and relief provided by this Order.
Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a Non-
Party’s confidential information in its possession, and the Party is subject to an agreement with
the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that some
or all of the information requested is subject to a confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order
in this Action, the relevant discovery request(s), and a reasonably specific description of the
information requested; and
(3) make the information requested available for inspection by the Non-Party, if
requested.
(c) If the Non-Party fails to seek a protective order from this court within 14 days of
receiving the notice and accompanying information, the Receiving Party may produce the Non-
Party’s confidential information responsive to the discovery request. If the Non-Party timely
seeks a protective order, the Receiving Party shall not produce any information in its possession
or control that is subject to the confidentiality agreement with the Non-Party before a
determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
burden and expense of seeking protection in this court of its Protected Material.
10. 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.
11. 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.
12. MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to
seek its modification by the Court in the future.
12.2 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.
12.3 Filing Protected Material.
(a) Sealing/Redactions Not Requiring Court Approval. Federal Rule of Civil Procedure
5.2 describes sensitive information that must be redacted from public court filings. No Court
approval is required for these redactions.
(b) Sealing/Redactions Requiring Court Approval.
(1) Initial Filing Process. Any party wishing to file any document under seal or in
redacted form shall (1) file on ECF a redacted copy of the document, (2) file on ECF a sealed
copy of the document, and (3) submit to Chambers an unredacted copy by email.
(2) Meet and Confer Requirement. Within 5 business days of the ECF filing of the
redacted document(s), the parties must confer in good faith as to whether any or all of the
redacted material may or must be filed without redaction. If the parties reach agreement that all
redacted material may or must be unredacted, the parties shall file on ECF unredacted copies of
the previously redacted documents and so inform the Court.
(3) When Motion Required. A motion is required whenever one or more parties
seek to maintain sealed material. If the parties cannot agree to unredact all redacted material,
then, within 3 business days of the parties’ meet and confer, the party seeking to preserve
confidentiality must make a specific request to the Court by letter motion. If more than one party
seeks to preserve confidentiality, the parties shall confer and submit a joint letter. Any party
opposing the request to file under seal must submit a responding letter within 3 business days
after submission of the letter by the party seeking to preserve confidentiality.
(4) What Must Be Included In Motion. Any letter motion requesting that material
remain under seal must explain the reasons for seeking to file the material under seal and address
the request in light of the Court of Appeals’ opinions in Lugosch v. Pyramid Co. of Onondaga,
435 F.3d 110 (2d Cir. 2006) and Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814
F.3d 132 (2d Cir. 2016). Any sealing request shall include the requesting party’s proposed
redactions.
(5) Motion Filing Process. The letter motion to seal (and any response) must be
filed on ECF in public view and should not itself include confidential material for which sealing
is sought. Any supporting papers or attachments that contain confidential material may be filed
under seal or redacted to the extent necessary to safeguard that information. At the time the letter
motion is filed it should be designated as related to the documents filed under seal in the initial
filing process.
(6) Unredaction. If the Court directs that any previously redacted material be
unredacted, the party who submitted the previously redacted document shall, within 3 business
days after the Court’s unredaction order, file on ECF the documents complying with the Court’s
order.
(7) Inability to Comply. Any party unable to comply with the requirement for
electronic filing under seal through the ECF system, or who has reason to believe that a
particular document should not be electronically filed, must move by letter motion for leave of
Court to file non-electronically
13. FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60 days of a
written request by the Designating Party, 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 60 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 capturing any of the Protected
Material. 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).
14. Any violation of this Order may be punished by any and all appropriate measures
including, without limitation, contempt proceedings and/or monetary sanctions.
SO STIPULATED AND AGREED.
GREENBERG TRAURIG, LLP KUSHNIRSKY GERBER PLLC
/s/ Justin A. MacLean /s/Andrew Gerber
Dated: May 27, 2022 Dated: May 27, 2022
By: Justin A. MacLean By: Andrew Gerber
One Vanderbilt Avenue 27 Union Square West, Suite 301
New York, NY 10017 New York, NY 10003
Tel: 212-801-3137 Tel: 212-882-1320
Email: macleanj@gtlaw.com Email: andrew@kegfirm.com
Attorneys for Defendant Zoetop Business Co., Ltd. Attorneys for Plaintiff
SO ORDERED.
Dated: June 1, 2022
New York, New York ANALISA TORRES
United States District Judge
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