The opinion
IN THE UNITED STATES DISTRICT COORT
FOR THE SOUTHERN DISTRICT OF NEW YORK
ene nnn cece □□□ cece eee □□□□□□□□□□□□□□□□□□□□□□□□
UNITED STATES OF AMERICA FOR THE : Case No, 1;23-cy-10732-JMF
USE AND BENEFIT OF PINNACLE
ENVIRONMENTAL CORPORATION,
Plaintiff, □ □
!
VOLMAR CONSTRUCTION INC. and :
TRAVELERS CASUALTY AND SURETY :
COMPANY OF AMERICA,
Defendants. :
VOLMAR CONSTRUCTION INC., :
Third-Party Plaintiff, :
v :
BANK OF AMERICA, N.A. and TRUIST BANK, :
Third-Party Defendants, :
nnn
CONFIDENTIALITY STIPULATION AND ORDER
AND NOW, this 31st day of May , 2024, it appearing that discovery in the
above-captioned action will involve the disclosure of confidential information, including but not
limited to personally identifiable financial information within the meaning of the Gramm -Leach-
Bliley Act, 15 U.S.C. § 6801 ef seq,; banking information shielded by statute; information and/or
documents that contain trade secrets; competitively sensitive technical, marketing, financial, sales
or other confidential business information; information and/or documents that contains private or
confidential personal or financial information; documents that contain information received in
confidence from third-parties, and/or information which the producing party otherwise believes in
good faith to be entitled to protection under Rule 26(c)(1)(G) of the Federal Rules of Civil
Procedure (“Confidential Information”), the parties—i.e,, (1) Plaintiff, United States of America
for the use and benefit of Pinnacle Environmental Corporation; (2) Defendant Travelers Casualty
and Surety Company of America; (3) Defendant/Third-Party Plaintiff, Volmar Construction Inc.;
(4) Third-Party Defendant Truist Bank; and (5) Third-Party Defendant Bank of America, N.A.
(collectively, the “Parties’”)}—hereby agree as follows:
1, The term “Discovery Material” means all documents and other information
produced or disclosed in the course of discovery in the above-captioned action, regardless of the
medium or manner generated, stored, maintained, or revealed, and information derived directly
therefrom, including, but not limited to, electronically stored information, transcripts of
depositions or hearing testimony, responses to interrogatories, responses to requests for admission,
or other written responses to discovery, All Discovery Material produced in this action shall be
used by the receiving party solely for purposes of the prosecution or defense of this action, and
shall not be used by the receiving party for any business, commercial, competitive, personal, or
other purpose whatsoever. Discovery Material may not be shared with non-parties for any
business, commercial, competitive, personal, or other purpose, And, Discovery Material may only
be shared with a non-party under circumstances and for purposed stated herein, provided any non-
party fully executes the attached Exhibit A.
2, Any party to this litigation and any non-party, specifically including non-parties
subject to subpoena, shall have the right to designate as “Confidential” and subject to this
Confidentiality Agreement and Protective Order (“Agreement”) any information, document, or
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portion of any document that contains information that the producing party believes in good faith
to be entitled to protection from further disclosure. Any party to this litigation or any non-party
covered by this Agreement that produces or discloses any material that is Confidential, including
without limitation any information, document, interrogatory answer, admission, pleading, or
testimony, shall mark the same with the foregoing or similar legend on each page practicable:
“CONFIDENTIAL.”
3, In addition to the restrictions set forth in Paragraph 1, Confidential Information
shall not be disclosed by the receiving party to anyone other than those set forth in Paragraph 4(a)-
(h) unless and until the restrictions herein are removed either by written agreement of counsel for
the parties or by Order of the Court. It is, however, understood that counsel for a party may give
advice and opinions to his or her client solely relating to the above-captioned action based on
his or her evaluation of the Confidential Information, provided that such advice and opinions
shall not reveal the content of such material except by prior written agreement of counsel for the
parties, or by Order of the Court.
4. Confidential material and the contents of Confidential Information may be
disclosed only to the following individuals under the following conditions:
a. Outside counsel (herein defined as any attorney at a party’s outside law firm(s) that
is/are counsel of record for that party in this Action);
b. Outside experts or consultants retained by outside counsel for purposes of this
action, provided they have signed a non-disclosure agreement in the form attached
hereto as Exhibit A;
c. Secretarial, paralegal, clerical, duplicating and data-processing personnel of the
foregoing; _
d. The Court and court personnel;
e. Witnesses at deposition or trial, provided they have signed a non-disclosure
agreement in the form attached hereto as Exhibit A With respect to witnesses to
whom disclosure is reasonable because counsel for the party intending to disclose
the information has a good faith basis for believing such witness (i) sent or received
the Confidential material; (ii) is a current employee of the party that produced the
Confidential material, or an affiliated company; or (iii) has personal knowledge
regarding the creation or use of the specific Discovery Material containing the
Confidential material, Witnesses shal! not retain a copy of documents containing
Confidential material, except that a witness may receive copies of all exhibits
marked at that witness’s deposition in connection with the witness’s review of the
transcript, but said witness may not retain, under any circumstances, any
Confidential Information or material designate Confidential beyond the need to
review their deposition transcript;
f. Other persons only by written consent of the Designating Party or upon order of the
Court, and on such conditions as may be agreed or ordered, but such consent shall
not be unreasonably withheld; .
g. Vendors retained by or for the parties to assist in preparing for pretrial discovery,
trial, and/or hearings, including, but not limited to, court reporters, litigation
support personnel, jury consultants, individuals to prepare demonstrative and
audiovisual aids for use in the courtroom or in depositions or mock jury sessions,
as well as their staff, stenographic, and clerical employees whose duties and
responsibilities require access to such materials; and
h. The Parties. In this case, “party” shall mean relevant in-house counsel for the parties
and executives of the Parties who counsel for the Parties reasonably believes are
required to participate in decisions with reference to this lawsuit. .
5. Confidential material shall be used only by individuals permitted access to it under
Paragraph 4(a)-(h). Confidential Information, copies thereof, and the information contained
therein, shall not be disclosed in any manner to any other individual, until and unless (a) outside
counsel for the party asserting confidentiality waives the claim of confidentiality in writing, or (b)
the Court orders such disclosure.
6. Nothing in this Agreement shall restrict any party’s use, for any purpose, of its own
Confidential Information.
7. With respect to any depositions that involve the disclosure of Confidential
Information of a party to this action, the party that produced such Confidential Information shall
have until fourteen (14) business days after receipt of the final deposition transcript within which
to inform all other parties that portions of the transcript are to be designated Confidential, which
period may be extended by agreement of the parties. No such deposition transcript shall be
disclosed to any individual other than the individuals described in Paragraph 4(a)-(h) and the
deponent during these fourteen (14) days, and no individual attending such a deposition shail
disclose the contents of the deposition, and any Confidential Information shared therein, to any
individual other than those described in Paragraph 4{a)-(h) during said fourteen (14) days, Upon
being informed that certain portions of a deposition are to be designated as Confidential, all parties
shall immediately cause each copy of the transcript in its custody or control to be appropriately
marked and limit disclosure of that transcript in accordance with this Agreement.
8. If counsel for a party receiving documents or information designated as
Confidential objects to such designation, in whole or in part, the following procedure shall apply:
a. Counsel for the objecting party shall serve on the designating party or non-party a
written objection to such designation, which shall describe with particularity the
documents or information in question and shall state the grounds for objection.
b, Counsel for the designating party or non-party shall respond in writing to such
objection within seven (7) business days, and shall state with particularity the
grounds for asserting that the document or information is Confidential. If no timely
written response is made to the objection, the challenged designation will be
deemed to be void.
c. If the designating party or nonparty makes a timely response to such objection
asserting the propriety of the designation, counsel shall then confer in good faith in
an effort to resolve the dispute.
d. Ifa dispute as to a Confidential designation of a document or item of information
cannot be resolved by agreement, the party challenging the designation shall
present the dispute to the Court by motion, At such time, the party claiming
Confidential status shall have the burden of establishing the need for such status.
The document or information that is the subject of the filing shall be treated as
originally designated pending resolution of the dispute.
9. All requests to seal documents filed with the Court shall comply with the Court’s
directives and rules and the Local Civil Rules, Ifa party intends to file documents or information
designated as Confidential, that party shall give at least five (5) business days’ notice to counsel
for the producing party to allow the producing party to take steps necessary to protect the
confidentiality of the documents or information. The party wishing to file Confidential Information
must move the Court for an Order that the evidence at issue be filed under seal, received in camera,
or received under conditions (such as redacting certain information) to prevent unnecessary public
disclosure. Before any such motion is filed with the Court, counsel shall confer in good faith in an
effort to prevent unnecessary disputes about confidentiality, such as by agreeing to redact such
information prior to filing the documents with the Court.
10. Subject to the Federal Rules of Evidence, documents or information designated as
Confidential may be offered in evidence at trial or any Court hearing in open Court, provided that
the proponent of the evidence gives notice to counsel for the producing party sufficiently in
advance of the disclosure, to allow the producing party to take steps necessary to protect the
confidentiality of the documents or information. Such notice shall be sufficient if it is provided to
the producing party at least five (5) business days in advance of the proposed disclosure and/or as
directed by the Court, except in the case of a preliminary injunction or TRO hearing, in which case
only one (1) day’s notice to the producing party is required. The proffering party must move the
Court for an Order that the evidence at issue be received in camera, filed under seal (if an
appropriate showing is made, pursuant to Paragraph 9, above), or under conditions to prevent
unnecessary public disclosure. Before any such motion is filed with the Court, counsel shall confer
in good faith in an effort to prevent unnecessary disputes about confidentiality, such as by agreeing
to redact such information prior to offering such evidence in open Court. Nothing in this
Agreement shall operate as an admission by any Party that any Confidential documents or
information is, or is not, admissible in evidence in these proceedings.
11. To the extent consistent with applicable law, the inadvertent or unintentional
disclosure of Confidential Information that should have been designated as such, regardless of
whether the information or document was so designated at the time of disclosure, shall not be
deemed a waiver in whole or in part of a party’s claim of confidentiality, either as to the specific
information or document disclosed or as to any other material or information concerning the same
or related subject matter. Such inadvertent or unintentional disclosure may be rectified by
notifying in writing counsel for all parties to whom the material was disclosed that the material
should have been designated Confidential within a reasonable time after disclosure. Such notice
shall constitute a designation of the information or document as Confidential under this
Agreement,
12, When the inadvertent or mistaken disclosure of any information or document
protected by privilege or work-product immunity is discovered by the producing party and brought
to the attention of the receiving party, the recetving party must promptly return or destroy such
material, as directed by the producing party. Such inadvertent or mistaken disclosure of such
information or document shall not by itself constitute a waiver by the producing party of any claims
of privilege or work-product immunity. However, nothing herein restricts the right of the receiving
party to challenge the producing party’s claim of privilege if appropriate within a reasonable time
after receiving notice of the inadvertent or mistaken disclosure.
13. No information that is in the public domain shall be deemed or considered to be
Confidential under this Agreement.
14, This Agreement shall not deprive any party of its right to object to discovery by
any other party or on any otherwise permitted ground. This Agreement is being entered into
without prejudice to the right of any party to move the Court for modification or for relief from
any of its terms.
15, This Confidentiality shall survive the termination of this action and shall remain in
full force and effect unless modified by an Order of this Court or by the written motion of the
parties filed with the Court.
16. Upon final conclusion of this litigation, each party or other individual subject to the
terms hereof shall be under an obligation to assemble and to return to the originating source all
originals and unmarked copies of documents containing Confidential material or to certify to the
producing party that all copies of Confidential Information have been destroyed; provided,
however, that counsel may retain complete copies of all transcripts and pleadings including any
exhibits attached thereto, and any summaries or digests maintained by counsel, for archival
purposes, subject to the provisions of this Agreement. To the extent a party requests the return of
Confidential material from the Court after the final conclusion of the litigation, including the
exhaustion of all appeals therefrom and all related proceedings, the party shall file a motion seeking
such relief.
17. A party that issues a non-party subpoena shall include a copy of this Agreement
with the subpoena and state that the parties to the litigation have requested that non-partics produce
documents in accordance with this agreement. The provisions of this Agreement shall apply to
such discovery from a non-party as if such discovery were being provided by a party to the
litigation. The non-party shall have the same rights and obligations under this Agreement as held
by the parties.
18. No act carried out under this Agreement, including designating material as
Confidential, shall be construed as an admission or conclusion: (a) that any information, document
or the like designated as Confidential is in fact confidential; or (b) with respect to the competency,
relevance, materiality, admissibility, privilege, or immunity of any such information, document or
the like. □
19. This Agreement may be modified only by written motion to the Court, Nothing
contained herein shall preclude any party from seeking an order of the Court modifying or
supplementing this Agreement.
The parties, through their respective counsel, expressly agree to the terms of this
Agreement and consent to its form and approval.
AGREED
Dated: May23, 2024 Dated: May 2 2024
NDEI, AKSELROD,#.C. RABINOWITZ & GALINA, ESQS.
“aS Uli! MB
aniel Akselrod, Esq. 4yie A. Rosen, Esq.
40 Exchange PL. Ste. 1203 94 Willis Ave.
New York, NY 10005 Mineola, NY 11501
Telephone: (212) 668-1700 Telephone: (516) 739-8222
Email: da@vmdalaw.com
. Counsel for Defendant Travelers Casualty
Counsel for Plaintiff and Surety Company of America and also for
Defendant/Third-Party Plaintiff, Volmar
Construction Ine,
Dated; Maya, 2024 Dated; May?, 2024
EEE; LARD SPAHR LP
falpk. Dunn, Esq. ( Justin Kerner, Esq.
1 Avenue of the Americas, 20th FI. 00 Eést Gate Drive, Ste.
‘New York, NY 10020-1104 ount Laurel, NJ 08054-0015
{ Telepherfe: (212) 548-7035 Telephone: (856) 761-3448
Email: mdunn@mcguirewoods.com Email: kernerj@ballardspahr.com
Counsel for Third-Party Defendant Bank of Counsel (jor Third-Party Defendant Truist
America, N.A. Bank
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APPROVED BY THE COURT:
Dated; May31 □□ 20024
Hon. JESSE MAN, U.S.D.J.
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 @Qd 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
2019 WL 3294170 (S.D.N.Y. July 19, 2019).
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SCUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA FOR THE : Case No. 1:23-cv-10732-JMF
USE AND BENEFIT OF PINNACLE :
ENVIRONMENTAL CORPORATION, :
Plaintiff
v. :
VOLMAR CONSTRUCTION INC. and
TRAVELERS CASUALTY AND SURETY :
COMPANY OF AMERICA, :
Defendants. :
VOLMAR CONSTRUCTION INC.,
Third-Party Plaintiff, :
BANK OF AMERICA, N.A. and TRUIST BANK,
Third-Party Defendants, :
wena ee neces □□□□□□□□□□□□□□□□□□□□□□□□□ KC
L , being duly sworn, state that:
1. My address is .
2. My present employeris □□□□□□□□□□□□□□□□□□□□□□ and the address of my present
employment is .
3. My present occupation or job description is .
4, ] have carefully read and understood the provisions of the Confidentiality
Agreement and Protective Order (“Agreement”) in this case approved by the Court, and I will
comply with all provisions of the Agreement.
5. I will hold in confidence and not disclose to anyone not qualified under the
Agreement any Confidential material or any words, summaries, abstracts, or indices of
Confidential material disclosed to me.
6. I will limit use of Confidential material disclosed to me solely for purpose of this
action.
7, No later than the final conclusion of the case, I will return all Confidential
material and summaries, abstracts, and indices thereof which come into my possession, and
documents or things which I have prepared relating thereto, to counsel for the party for whom I
was employed or retained.
I declare under penalty of perjury that the foregoing is true and correct.
Dated:
[Signature]
[Printed Name]
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