The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BAER et al., Case No. 22-CV-00994-JMF
Plaintiffs,
v.
DUFF & PHELPS, LLC,
Defendant.
STIPULATED PROTECTIVE ORDER
Plaintiffs and Defendant Duff & Phelps, LLC (“Duff & Phelps”) (altogether the “Parties”),
through their respective attorneys of record, hereby stipulate to and petition the Court to enter the
following Stipulated Protective Order.
1. INTRODUCTION
1.1 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 instant 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; Standing Order
19-MC-583 and Section 6 of the S.D.N.Y. Electronic Case Filing Rules and Instructions set 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.
1.2 GOOD CAUSE STATEMENT
This action is likely to involve valuable research, development, commercial, personal,
financial, technical. 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, personal and/or financial information, information regarding confidential business
practices, or other confidential research, development, or commercial information (including
information implicating privacy rights of third parties), 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: this pending federal lawsuit, Case No. 22-CV-00994-JMF in the Southern
District of New York.
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 Counsel: Outside Counsel of Record and House Counsel (as well as their support
staff).
2.5 Designating Party: a Party or Non-Party that designates information or items that
it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.6 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.
2.7 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.
2.8 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.
2.9 Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.
2.10 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.
2.11 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).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this Action.
2.13 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.
2.14 Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL.”
2.15 Receiving Party: a named Party in this Action 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 will 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 will remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition will 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”), 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 will be deemed “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” 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.
(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.” If only a portion
or portions of the information warrants protection, the Producing Party, to the extent practicable,
will 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 ensure 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 will initiate the dispute resolution
process (and, if necessary, file a discovery motion) under Local Civil Rule 37.2 with the
modifications in the Court’s Civil Case Management Plan and Scheduling Order [ECF No. 43].
6.3 Burden. The burden of persuasion in any such challenge proceeding will 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 will 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.
Protected Material must be stored and maintained by a Receiving Party at a location and/or
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
witnesses sign the form attached as Exhibit A 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.
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,” that Party
must:
(a) promptly notify in writing the Designating Party. Such notification will 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 will 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 will not produce any information designated in this action as “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 will 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 will:
(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 will 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 will 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. MISCELLANOUS
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 Party that seeks to file under seal any Protected
Material must comply with the procedures set forth in Standing Order 19-MC-583 and Section 6
of the S.D.N.Y. Electronic Case Filing Rules and Instructions.* Protected Material may only be
filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material
at issue. If a Party’s request to file Protected Material under seal is denied by the court, then the
Receiving Party may file the information in the public record unless otherwise instructed by the
court.
* and the Court's Individual Rules and Practices in Civil Cases
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.
14. WILLFUL VIOLATIONS
Any willful violation of this Order may be punished by civil or criminal contempt
proceedings, financial or evidentiary sanctions, reference to disciplinary authorities, or other
appropriate action at the discretion of the Court.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: April 17, 2023
AGREED:
/s/ Matthew A. Stark /s/ Lawrence P. Eagel
Matthew A. Stark Lawrence P. Eagel
WINSTON & STRAWN LLP BRAGAR EAGEL & SQUIRE, P.C.
200 Park Avenue 810 Seventh Avenue, Suite 620
New York, NY 10166 New York, NY 10019
Tel: (212) 294-6700 Tel: (212) 308-5858
Fax: (212) 294-4700 Fax: (212) 214-0506
mstark@winston.com eagel@bespc.com
Marion C. Passmore
Stephen V. D’Amore (pro hac vice) passmore@bespc.com
Scott M. Ahmad (pro hac vice)
Bailey Q. Brandon (pro hac vice) LEVINE KELLOGG LEHMAN
SCHNEIDER & GROSSMAN LLP
WINSTON & STRAWN LLP Miami Tower
35 W. Wacker Drive 100 S.E. 2nd Street, 36th Floor
Chicago, IL 60601 Miami, FL 33131
Tel: (312) 558-5600 Tel: (305) 403-8788
Fax: (312) 558-5700 Fax: (305) 403-8789
sdamore@winston.com Jeffrey C. Schneider, Esq.
sahmad@winston.com jcs@lklsg.com
bbrandon@winston.com Jason Kellogg, Esq.
jk@lklsg.com
Counsel for Defendant Duff & Phelps, LLC Victoria J. Wilson, Esq.
vjw@lklsg.com
Gabriel A. Lievano, Esq.
gl@lklsg.com
THE MEADE FIRM p.c.
California Office:
12 Funston Ave., Suite A
San Francisco, CA 94129
New York Office:
111 Broadway, Suite 2002
New York, NY 10006
Tel: (415) 724-9600
Tyler Meade
tyler@meadefirm.com
REISER LAW, p.c.
1475 N. Broadway, Suite 300
Walnut Creek, California 94596
Tel: (925) 256-0400
Fax: (415) 510-2544
Michael J. Reiser (133621)
michael@reiserlaw.com
Isabella Martinez (315299)
isabella@reiserlaw.com
This stipulation 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 stipulation, 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 “so orders” the stipulation generally,
but 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. Spherion Corp., No. 15-CV-6605
(JMF), 2019 WL 3294170 (S.D.N.Y. July 19, 2019). SO ORDERED.
G ( April 18, 2023
Page 15 of 16
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [full name], of _________________ [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 [date] _________________ in the case of Baer et al. v. Duff & Phelps, LLC, No.
22-CV-00994-JMF (S.D.N.Y). 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 hereby
appoint ______________________ [full name] of __________________________________ [full
address and telephone number] as my New York agent for service of process in connection with
this action or any proceedings related to enforcement of this Stipulated Protective Order.
Date: ______________________________________
City and State where signed: _________________________________
Printed name: _______________________________
Signature: __________________________________