The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMALGAMATED BANK,
Plaintiff,
- against –
Case No. 1:23-cv-09511 (JMF)
JPMORGAN CHASE BANK, N.A. AND ARMON
WARREN,
Defendants.
CONFIDENTIALITY STIPULATION AND PROPOSED PROTECTIVE ORDER
This Protective Order is issued to facilitate document disclosure and production of
confidential documents and information between the parties, by agreement. This Protective Order
does not require or order the production of any specific documents or information. Rather, because
discovery sought by the parties to this lawsuit is likely to involve the production of documents and
things or information containing private, personal, financial, business, competitive, business
operational, proprietary, trade secret or other information of a sensitive nature about a party
(hereafter collectively referred to as “Confidential Information”), and witness testimony
containing Confidential Information, this Order is entered to facilitate agreed discovery while
safeguarding confidentiality;
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 this action:
1. This Agreed Protective Order shall apply to information, documents,
excerpts from documents, and other materials produced in this action pursuant to Federal
Rules of Civil Procedure governing disclosure and discovery.
2. Counsel for any party may designate any document or information, in whole
or in part, as confidential if counsel determines, in good faith, that such designation is
necessary to protect the interests of the client in information that is proprietary, a trade
secret, or otherwise sensitive non-public information (“Confidential Information”).
Information and documents designated by a party as confidential will be stamped
“CONFIDENTIAL.”
3. “CONFIDENTIAL” information means information, documents, or things
that have not been made public by the disclosing party and that the disclosing party
reasonably and in good faith believes contains or comprises (a) trade secrets, (b)
proprietary business information, or (c) information implicating an individual’s legitimate
expectation of privacy.
4. “CONFIDENTIAL-ATTORNEY’S EYES ONLY” means
CONFIDENTIAL information that the disclosing party reasonably and in good faith
believes is so highly sensitive that its disclosure to a competitor could result in significant
competitive or commercial disadvantage to the designating party.
5. Documents shall be designated by stamping or otherwise marking the
documents with the words “CONFIDENTIAL” or “CONFIDENTIAL-FOR
ATTORNEYS’ EYES ONLY” thus clearly identifying the category of Designated
Material for which protection is sought under the terms of this Order. Designated Material
not reduced to documentary form shall be designated by the producing party in a
reasonably equivalent way.
6. Notwithstanding the designation of information as “CONFIDENTIAL” in
discovery, there is no presumption that such information shall be filed with the Court under
seal. The parties shall follow the Court’s procedures for requests for filing under seal.
7. The parties will use reasonable care to avoid designating as confidential
documents or information that does not need to be designated as such.
8. A party may submit a request in writing to the party who produced
Designated Material that the designation be modified or withdrawn. If the Designating
Person does not agree to the redesignation within fifteen business days, the objecting party
may apply to the Court for relief. Upon any such application, the burden shall be on the
Designating Person to show why the designation is proper. Before serving a written
challenge, the objecting party must attempt in good faith to meet and confer with the
Designating Person in an effort to resolve the matter. The Court may award sanctions if it
finds that a party’s position was taken without substantial justification.
9. Information, documents, and other materials may be designated by the
producing party in the manner permitted (“the Designating Person”). All such information,
documents, excerpts from documents, and other materials will constitute “Designated
Material” under this Order. The designation shall be either (a) “CONFIDENTIAL” or (b)
“CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” This Order shall apply to Designated
Material produced by any party or third-party in this action.
10. The Confidential Information disclosed will be held and used by the person
receiving such information solely for use in connection with the action.
11. In the event a party challenges another party’s designation of confidentiality,
counsel shall make a good faith effort to resolve the dispute, and in the absence of a
resolution, the challenging party may seek resolution by the Court. Nothing in this
Protective Order constitutes an admission by any party that Confidential Information
disclosed in this case is relevant or admissible. Each party reserves the right to object to
the use or admissibility of the Confidential Information.
12. Documents designated as “CONFIDENTIAL” shall not be disclosed to any
person, except:
a. The requesting party and counsel, including in-house counsel;
b. Employees of such counsel assigned to and necessary to assist in the
litigation;
c. Consultants or experts assisting in the prosecution or defense of the matter,
to the extent deemed necessary by counsel; and
d. The Court (including the mediator, or other person having access to any
Confidential Information by virtue of his or her position with the Court).
The parties should meet and confer if any production requires a designation of “For
Attorneys’ or Experts’ Eyes Only.”
13. Designated Material shall not be used or disclosed for any purpose other than
the litigation of this action and may be disclosed only as follows:
a. Parties: Material designated “CONFIDENTIAL” may be disclosed to parties
to this action or directors, officers and employees of parties to this action,
who have a legitimate need to see the information in connection with their
responsibilities for overseeing the litigation or assisting counsel in preparing
the action for trial or settlement. Before Designated Material is disclosed for
this purpose, each such person must agree to be bound by this Order by
signing a document substantially in the form of Exhibit A.
b. Witnesses or Prospective Witnesses: Designated Material, including material
designated “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” may be
disclosed to a witness or prospective witness in this action, but only for
purposes of testimony or preparation of testimony in this case, whether at
trial, hearing, or deposition, but it may not be retained by the witness or
prospective witness. Before Designated Material is disclosed for this
purpose, each such person must agree to be bound by this Order, by signing
a document substantially in the form of Exhibit A.
c. Outside Experts: Designated Material, including material designated
“CONFIDENTIAL -ATTORNEYS’ EYES ONLY,” may be disclosed to an
outside expert for the purpose of obtaining the expert’s assistance in the
litigation. Before Designated Material is disclosed for this purpose, each such
person must agree to be bound by this Order, by signing a document
substantially in the form of Exhibit A.
d. Counsel: Designated Material, including material designated
“CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” may be disclosed to
counsel of record and in-house counsel for parties to this action and their
associates, paralegals, and regularly employed office staff.
e. Other Persons: Designated Material may be provided as necessary to copying
services, translators, and litigation support firms. Before Designated Material
is disclosed to such third parties, each such person must agree to be bound
by this Order by signing a document substantially in the form of Exhibit A.
14. Prior to disclosing or displaying the Confidential Information to any person,
counsel must:
a. Inform the person of the confidential nature of the information or documents;
b. Inform the person that this Court has enjoined the use of the information or
documents by him/her for any purpose other than this litigation and has
enjoined the disclosure of the information or documents to any other person;
and
c. Require each such person to sign an agreement to be bound by this Order in
the form attached as Exhibit A.
15. Inadvertent production of confidential material prior to its designation as
such in accordance with this Order shall not be deemed a waiver of a claim of
confidentiality. Any such error shall be corrected within a reasonable time.
16. The disclosure of a document or information without designating it as
“CONFIDENTIAL” shall not constitute a waiver of the right to designate such document
or information as Confidential Information. If so designated, the document or information
shall thereafter be treated as Confidential Information subject to all the terms of this
Stipulation and Order.
17. The confidential information may be displayed to and discussed with the
persons identified in Paragraphs 5(b) and (c) only on the condition that, prior to any such
display or discussion, each such person shall be asked to sign an agreement to be bound by
this Order in the form attached hereto as Exhibit A. In the event such person refuses to sign
an agreement in substantially the form attached as Exhibit A, the party desiring to disclose
the confidential information may seek appropriate relief from the Court.
18. A person having custody of Designated Material shall maintain it in a manner
that limits access to the Designated Material to persons permitted such access under this
Order.
19. Counsel shall maintain a collection of all signed documents by which persons
have agreed to be bound by this Order.
20. Any Personally Identifying Information (“PII”) (e.g., social security
numbers, financial account numbers, passwords, and information that may be used for
identity theft) exchanged in discovery shall be maintained by the receiving party in a
manner that is secure, such as a document management system or database that requires a
password to access.
21. Pursuant to Federal Rule of Evidence 502, the production of privileged or
work product protected documents or communications, electronically stored information
(“ESI”) or information, whether inadvertent or otherwise, shall not constitute a waiver of
the privilege or protection from discovery in this case or in any other federal or state
proceeding. This Order shall be interpreted to provide the maximum protection allowed by
Federal Rule of Evidence 502(d). Nothing contained herein is intended to or shall serve to
limit a party’s right to conduct a review of documents, ESI or information (including
metadata) for relevance, responsiveness and/or segregation of privileged and/or protected
information before production.
22. At the conclusion of litigation, Confidential Information and any copies
thereof shall be promptly (and in no event later than 30 days after entry of final judgment
no longer subject to further appeal) returned to the producing party or certified as
destroyed, except that the parties’ counsel shall be permitted to retain their working files
on the condition that those files will remain protected.
23. Nothing herein shall preclude the parties from disclosing material designated
to be Confidential Information if otherwise required by law or pursuant to a valid subpoena.
24. Deposition transcripts or portions thereof may be designated either (a) when
the testimony is recorded, or (b) by written notice to all counsel of record, given within ten
business days after the Designating Person’s receipt of the transcript in which case all
counsel receiving such notice shall be responsible for marking the copies of the designated
transcript or portion thereof in their possession or control as directed by the Designating
Person. Pending expiration of the ten business days, the deposition transcript shall be
treated as designated. When testimony is designated at a deposition, the Designating Person
may exclude from the deposition all persons other than those to whom the Designated
Material may be disclosed under paragraph 5 of this Order. Any party may mark
Designated Material as a deposition exhibit, provided the deposition witness is one to
whom the exhibit may be disclosed under paragraph 5 of this Order and the exhibit and
related transcript pages receive the same confidentiality designation as the original
Designated Material.
25. Any Designated Material which becomes part of an official judicial
proceeding or which is filed with the Court is public. Such Designated Material will be
sealed by the Court only upon motion and in accordance with applicable law. This
Protective Order does not provide for the automatic sealing of such Designated Material.
If it becomes necessary to file Designated Material with the Court, a party must move to
file the Designated Material under seal.
26. Filing pleadings or other papers disclosing or containing Designated Material
does not waive the designated status of the material. The Court will determine how
Designated Material will be treated during trial and other proceedings as it deems
appropriate.
27. Upon final termination of this action, all Designated Material and copies
thereof shall be returned promptly (and in no event later than forty-five (45) days after
entry of final judgment), returned to the producing party, or certified as destroyed to
counsel of record for the party that produced the Designated Material, or, in the case of
deposition testimony regarding designated exhibits, counsel of record for the Designating
Person. Alternatively, the receiving party shall provide to the Designating Person a
certification that all such materials have been destroyed. Notwithstanding the foregoing,
the parties acknowledge that they are federally regulated banks that may not destroy certain
of their electronic records except as allowed by their regulators. Therefore, the parties
agree to maintain the confidentiality of such Designated Material and copies thereof after
the termination of this litigation until their retention period has expired, at which time all
Designated Material and copies thereof will be destroyed.
28. Nothing in this Order shall require disclosure of information protected by the
attorney-client privilege, or other privilege or immunity, and the inadvertent production of
such information shall not operate as a waiver. If a Designating Party becomes aware that
it has inadvertently produced information protected by the attorney-client privilege, or
other privilege or immunity, the Designating Party will promptly notify each receiving
party in writing of the inadvertent production. When a party receives notice of such
inadvertent production, it shall return all copies of inadvertently produced material within
three business days. Any notes or summaries referring or relating to any such inadvertently
produced material subject to claim of privilege or immunity shall be destroyed forthwith.
Nothing herein shall prevent the receiving party from challenging the propriety of the
attorney-client privilege or work product immunity or other applicable privilege
designation by submitting a challenge to the Court. The Designating Party bears the burden
of establishing the privileged nature of any inadvertently produced information or material.
Each receiving party shall refrain from distributing or otherwise using the inadvertently
disclosed information or material for any purpose until any issue of privilege is resolved
by agreement of the parties or by the Court. Notwithstanding the foregoing, a receiving
party may use the inadvertently produced information or materials to respond to a motion
by the Designating Party seeking return or destruction of such information or materials. If
a receiving party becomes aware that it is in receipt of information or materials which it
knows or reasonably should know is privileged, Counsel for the receiving party shall
immediately take steps to (i) stop reading such information or materials, (ii) notify Counsel
for the Designating Party of such information or materials, (iii) collect all copies of such
information or materials, (iv) return such information or materials to the Designating Party,
and (v) comport themselves with the applicable provisions of the Rules of Professional
Conduct.
29. The foregoing is entirely without prejudice to the right of any party to apply
to the Court for any further Protective Order relating to Designated Material; or to object
to the production of Designated Material; or to apply to the Court for an order compelling
production of Designated Material; or for modification of this Order; or to seek any other
relief from the Court.
30. The restrictions imposed by this Order may be modified or terminated only
by further order of the Court.
SO STIPULATED AND AGREED.
IT IS SO ORDERED.
SIGNED on this !!th day of January 2024.
& ae DISTRICT JUDGE
JESSE M. FURMAN
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 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).
EXHIBIT A
I have been informed by counsel that certain documents or information to be
disclosed to me in connection with the matter entitled
_______________________________ have been designated as confidential. I have been
informed that any such documents or information labeled “CONFIDENTIAL
PRODUCED PURSUANT TO PROTECTIVE ORDER” are confidential by Order of the
Court.
I hereby agree that I will not disclose any information contained in such documents
to any other person. I further agree not to use any such information for any purpose other
than this litigation.
_______________________ DATED: _________________________