The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BIANCA BROWN
STIPULATED
Plaintiffs), CONFIDENTIALITY
AGREEMENT AND
- against - PROTECTIVE.ORDER
THE COUNTY OF WESTCHESTER, ETAL _?2 civ, 48 (PMH)
Defendant(s).
PHILIP M. HALPERN, United States District Judge:
WHEREAS, all the parties to this action (collectively the “Parties” and
individually a “Party”) request that this Court issue a protective order pursuant to Federal Rule of
Civil Procedure 26(c) to protect the confidentiality of nonpublic and competitively sensitive
information that they may need to disclose in connection with discovery in this action;
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds good cause exists for issuance of an appropriately
tailored confidentiality order governing the pretrial phase of this action,
IT IS HEREBY ORDERED that any person subject to this Order ~ including
without limitation the Parties to this action (including their respective corporate parents,
successors, and assigns), their representatives, agents, experts and consultants, all third parties
providing discovery in this action, and all other interested persons with actual or constructive
notice of this Order — will adhere to the following terms, upon pain of contempt:
1. With respect to “Discovery Material” (i.e., information of any kind
produced or disclosed in the course of discovery in this action) that a person has designated as
“Confidential” pursuant to this Order, no person subject to this Order may disclose such
Confidential Discovery Material to anyone else except as this Order expressly permits:
2. The Party or person producing or disclosing Discovery Material
(“Producing Party”) may designate as Confidential only the portion of such material that it
reasonably and in good faith believes consists of:
(a) previously non-disclosed financial information (including without
limitation profitability reports or estimates, percentage fees, design fees,
royalty rates, minimum guarantee payments, sales reports, and sale
margins);
(b) previously non-disclosed material relating to ownership or control of any
non-public company;
{c) previously non-disclosed business plans, product-development
information, or marketing plans;
(d) any information of a personal or intimate nature regarding any individual:
or
(e) any other category of information this Court subsequently affords
confidential status.
3. With respect to the Confidential portion of any Discovery Material other
than deposition transcripts and exhibits, the Producing Party or its counsel may designate such
portion as “Confidential” by: (a) stamping or otherwise clearly marking as “Confidential” the
protected portion in a manner that will not interfere with legibility or audibility; and (b)
producing for future public use another copy of said Discovery Material with the confidential
information redacted.
4. A Producing Party or its counsel may designate deposition exhibits or
portions of deposition transcripts as Confidential Discovery Material either by: (a) indicating on
the record during the deposition that a question calls for Confidential information, in which case
the reporter will bind the transcript of the designated testimony in a separate volume and mark it
as “Confidential Information Govemed by Protective Order;” or (b} notifying the reporter and all
counsel of record, in writing, within 30 days after a deposition has concluded, of the specific
pages and lines of the transcript that are to be designated “Confidential,” in which case all
counsel! receiving the transcript will be responsible for marking the copies of the designated
transcript in their possession or under their control as directed by the Producing Party or that
person’s counsel. During the 30-day period following a deposition, all Parties will treat the
entire deposition transcript as if it had been designated Confidential.
5. If at any time before the trial of this action a Producing Party realizes that
it should have designated as Confidential some portion(s) of Discovery Material that it
previously produced without limitation, the Producing Party may so designate such material by
so apprising all prior recipients in writing. Thereafter, this Court and all persons subject to this
Order will treat such designated portion(s) of the Discovery Material as Confidential.
6. Nothing contained in this Order will be construed as: (a) a waiver by a
Party or person of its right to object to any discovery request; (b) a waiver of any privilege or
protection; or (c) a ruling regarding the admissibility at trial ofany document, testimony, orother
evidence.
7. Where a Producing Party has designated Discovery Material as
Confidential, other persons subject to this Order may disclose such information only to the
following persons:
(a) the Parties to this action, their insurers, and counsel] to their insurers;
(b) —_ counsel retained specifically for this action, including any paralegal,
clerical, or other assistant that such outside counsel employs and assigns to
this matter;
(c) outside vendors or service providers (such as copy-service providers and
document-management consultants) that counsel hire and assign to this
matter;
(d} | any mediator or arbitrator that the Parties engage in this matter or that this
Court appoints, provided such person has first executed a Non-Disclosure
Agreement in the form annexed as an Exhibit hereto;
{e) as to any document, its author, its addressee, and any other person
indicated on the face of the document as having received a copy;
(f) any witness who counsel for a Party in good faith believes may be called
to testify at trial or deposition in this action, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as an Exhibit
hereto;
(g) any person a Party retains to serve as an expert witness or otherwise
provide specialized advice to counsel in connection with this action,
provided such person has first executed a Non-Disclosure Agreement in
the form annexed as an Exhibit hereto;
(h) stenographers engaged to transcribe depositions the Parties conduct in this
action; and
(i) this Court, including any appellate court, its support personnel, and court
reporters.
8. Before disclosing any Confidential Discovery Material to any person
referred to in subparagraphs 7(d), 7(f), or 7(g) above, counse! must provide a copy of this Order
to such person, who must sign a Non-Disclosure Agreement in the form annexed as an Exhibit
hereto stating that he or she has read this Order and agrees to be bound by its terms. Said
counsel must retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to
opposing counsel either before such person is permitted to testify (at deposition or trial) or at the
conclusion of the case, whichever comes first.
9. In accordance with Rule 5 of this Court’s Individual Practices, any
party filing documents under sea] must simultaneously file with the Court a letter brief and
supporting declaration justifying -- on a particularized basis ~ the continued sealing of such
documents. The parties should be aware that the Court will unseal documents if it is unable to
make “specific, on the record findings . .. demonstrating that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.” Lugosch v. Pyramid Co, of
Onondaga, 435 F.3d 110, Cir. 2006).
10. | The Court also retains discretion whether to afford confidential treatment
to any Discovery Material designated as Confidential and submitted to the Court in connection
with any motion, application, or proceeding that may result in an order and/or decision by the
Court. All persons are hereby placed on notice that the Court is unlikely to seal or otherwise
afford confidential treatment to any Discovery Material introduced in evidence at trial, even if
such material has previously been sealed or designated as Confidential.
It. In filing Confidential Discovery Material with this Court, or filing
portions of any pleadings, motions, or other papers that disclose such Confidential Discovery
Materia! (“Confidential Court Submission”), the Parties shall publicly file a redacted copy ofthe
Confidential Court Submission via the Electronic Case Filing System. The Parties shal! file an
unredacted copy of the Confidential Court Submission under seal with the Clerk of this Court,
and the Parties shall serve this Court and opposing counsel with unredacted courtesy copies of
the Confidential Court Submission.
12. Any Party who objects to any designation of confidentiality may at any
time before the trial of this action serve upon counsel for the Producing Party a written notice
stating with particularity the grounds of the objection. If the Parties cannot reach agreement
promptly, counsel for all affected Parties will address their dispute to this Court in accordance
with paragraph 4(D) of this Court’s Individual Practices.
13. Any Party who requests additional limits on disclosure (such as
“attorneys’ eyes only” in extraordinary circumstances), may at any time before the trial of this
action serve upon counsel for the recipient Parties a written notice stating with particularity the
grounds of the request. If the Parties cannot reach agreement promptly, counsel for all affected
Parties will address their dispute to this Court in accordance with paragraph 4(D) of this
Court’s Individual Practices.
14. Recipients of Confidential Discovery Material under this Order may use
such material solely for the prosecution and defense of this action and any appeals thereto, and
not for any business, commercial, or competitive purpose or in any other litigation proceeding.
Nothing contained in this Order, however, will affect or restrict the rights of any Party with
respect to its own documents or information produced in this action.
15. Nothing in this Order will prevent any Party from producing any
Confidential Discovery Material in its possession in response to a lawful subpoena or other
compulsory process, or if required to produce by law or by any government agency having
jurisdiction, provided that such Party gives written notice to the Producing Party as soon as
reasonably possible, and if permitted by the time allowed under the request, at least 10 days
before any disclosure. Upon receiving such notice, the Producing Party will bear the burden to
oppose compliance with the subpoena, other compulsory process, or other legal notice if the
Producing Party deems it appropriate to do so.
16. Each person who has access to Discovery Material designated as
Confidential pursuant to this Order must take all due precautions to prevent the unauthorized or
inadvertent disclosure of such material.
17. If, in connection with this litigation, a party inadvertently discloses
information subject to a claim of attorney-client privilege or attorney work product protection
("Inadvertently Disclosed Information"), such disclosure shal! not constitute or be deemed a
waiver or forfeiture of any claim of privilege or work product protection with respect to the
Inadvertently Disclosed Information and its subject matter,
18. If a disclosing party makes a clatm of inadvertent disclosure, the
receiving party shall, within five business days, retum or destroy all copies of the Inadvertently
Disclosed [nformation, and provide a certification of counsel that all such information has been
retumed or destroyed.
19. Within five business days of the notification that such Inadvertently
Disclosed Information has been retumed or destroyed, the disclosing party shall produce a
privilege log with respect to the Inadvertently Disclosed Information.
20. ‘The receiving party may move the Court for an Order compelling
production of the Inadvertently Disclosed Information. The motion shal! be filed under seal,
and shall not assert as a ground for entering such an Order the fact or circumstances of the
inadvertent production.
21. The disclosing party retains the burden of establishing the privileged or
protected nature of any Inadvertently Disclosed Information. Nothing in this Order shall limit
the right of any party to request an in camera review of the Inadvertently Disclosed
Information.
22. Within 60 days of the final disposition of this action — including all
appeals — all recipients of Confidential Discovery Material must either return it — including all
copies thereof — to the Producing Party, or, upon permission of the Producing Party, destroy
such material — including all copies thereof. In either event, by the 60-day deadline, the
recipient must certify its return or destruction by submitting a wntten certification to the
Producing Party that affirms that it has not retained any copies, abstracts, compilations,
summaries, or other forms of reproducing or capturing any of the Confidential Discovery
Material. Notwithstanding this provision, the attorneys that the Parties have specifically
retained for this action may retain an archival copy of all pleadings, motion papers, transcripts,
expert reports, legal memoranda, correspondence, or attorney work product, even if such
materials contain Confidential Discovery Material. Any such archival copies that contain or
constitute Confidential Discovery Material remain subject to this Order.
23. This Order will survive the termination of the litigation and will continue
to be binding upon all persons to whom Confidential Discovery Material is produced or
disclosed.
24. This Court will retain jurisdiction over all persons subject to this Order
to the extent necessary to enforce any obligations arising hereunder or to impose sanctions for
any contempt thereof.
SO STIPULATED AND AGREED
Derek S. Sells, Esq. James A, Randazzo, Esq.
The Cochran Finn Portale Randazzo, LLP
55 Broadway, 23" Floor 245 Main Street, Suite 340
New York, NY 10006 White Plains, NY 1060!
□□□ Derek. S. Sells ___ (patra Lama
TK 9. SELIS James A. Randazzo
Dated: December 18, 2023 Dated: December _, 2023
Irma W. Cosgriff
Deputy County Attorney
Westchester County Attorney’s Office
148 Martine Avenue
White Plains, N 1
Irma/W. Cosgriff
Dated: December } 2023
SO ORDERED
Dated: White Plains, NY
December 20, 2023 (Yww/
Philip M. Halpem
United States District Judge
UNITED STATES DISTRICT COURT
_SOUTHERN DISTRICT OF NEW YORK ___
BIANCA BROWN
Plaintiff(s), NON-DISCLOSURE
- against - | ee
22. Civ. 96146 (PMH)
THE COUNTY OF WESTCHESTER, ET +
Defendant(s).
I, , acknowledge that I have read and
understand the Protective Order in this action governing the non-disclosure of those portions of
Discovery Material that have been designated as Confidential. I agree that I will not disclose
such Confidential Discovery Material to anyone other than for purposes of this litigation and that
at the conclusion of the litigation I will return all discovery information to the Party or attorney
from whom | received it. By acknowledging these obligations under the Protective Order, |
understand that { am submitting myself to the jurisdiction of the United States District Court for
the Southern District of New York for the purpose of any issue or dispute arising hereunder and
that my willful violation of any term of the Protective Order could subject me to punishment for
contempt of Court.
Dated: