The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
JOHN CARFORA, et al.,
Plaintiffs,
v. CASE NO. 1:21-cv-08384
TEACHERS INSURANCE AND ANNUITY CONFIDENTIALITY AND RULE
ASSOCIATION OF AMERICA, et al., 502(d) AGREEMENT AND
PROTECTIVE ORDER
Defendants.
KATHERINE POLK FAILLA, 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 commercially or 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 and 502(d) 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 or documents of any kind
produced or disclosed in the course of discovery in this action) that a Party, person or entity has
designated as “Confidential” pursuant to this Order (“Confidential Discovery Material”), no
person subject to this Order may disclose such Confidential Discovery Material to anyone else
except as this Order expressly permits.
2. The Party, person or entity producing or disclosing Discovery Material (“Producing
Party”) may designate as Confidential the entire document or a portion of such material if it
reasonably and in good faith believes that the Discovery Material consists of:
a. confidential, trade secret, proprietary, competitively or commercially sensitive
business or financial information, including without limitation research, market,
technical, and analytical information;
b. previously non-disclosed financial information (including without limitation
profitability reports or estimates, pricing and revenue analyses or projections,
percentage fees, design fees, royalty rates, minimum guarantee payments, sales
reports, and sale margins);
c. previously non-disclosed material relating to ownership or control of any non-
public company;
d. previously non-disclosed business plans, product-development information, or
marketing plans;
e. non-public documents and correspondence provided to a regulator as part of an
investigation;
f. any private or confidential personal information;
g. information prohibited from disclosure by law or statute;
h. information protected by a right to privacy under federal or state law or statute, or
any other applicable privilege or right related to confidentiality or privacy;
i. information that is otherwise entitled to protection under the Federal Rules of
Civil Procedure or the Local Rules of this Court; or
j. any other category of information this Court subsequently affords confidential
status.
3. With respect to Confidential Discovery Material other than deposition transcripts and
exhibits, the Producing Party or its counsel may designate such material as “Confidential” by
stamping or otherwise clearly marking as “Confidential” the protected material or portion of the
material in a manner that will not interfere with legibility or audibility. Electronically stored
information produced in native format may be designated Confidential without ensuring that
every page of such document, when printed, contains a Confidential stamp. The Producing Party
may designate natively produced materials as Confidential by (a) producing a TIFF placeholder
image corresponding to the natively produced material that includes a Confidential stamp, and
(b) including Confidential on the label of the media or in the transmittal correspondence
containing the natively produced materials.
4. A Producing Party or its counsel may designate deposition exhibits or portions of
deposition transcripts as Confidential Discovery Material by: (a) indicating on the record at the
conclusion of the deposition that the Party is designating all or portions of the deposition as
“Confidential” (in which case a Confidential marking shall appear on each page of the final
transcript that contains a designated passage); (b) 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 Governed by Protective Order;” or (c) notifying the reporter and all counsel of
record, in writing, within 30 days after a deposition has concluded, of the specific portions 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. At the request of a Producing Party, persons
not permitted access to Confidential Discovery Material shall not be present at depositions while
the Producing Party’s Confidential Discovery Material is discussed or otherwise disclosed.
5. If at any time before the trial of this action a Producing Party realizes that it should have
designated as Confidential all or some portion(s) of Discovery Material that it previously
produced without limitation, the Producing Party may so designate such material by apprising all
prior recipients in writing. Thereafter, this Court and all persons subject to this Order will treat
such designated Discovery Material as Confidential. The Producing Party may produce a
replacement document bearing the Confidential legend. In such instances, the receiving parties
shall immediately return to the Producing Party or destroy (and certify such destruction in
writing to counsel for the Producing Party) any material that lacked the Confidential legend upon
receiving the replacement documents. The receiving Party shall use good faith efforts to gather
and return or destroy all copies of the unmarked Confidential documents.
6. Nothing contained in this Order will be construed as: (a) a waiver by a Party, person or
entity of its right to object to any discovery request; (b) a waiver of any privilege, protection or
immunity; or (c) a ruling regarding the admissibility at trial of any document, testimony, or other
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 named Parties to this action (John Carfora, Sandra Putnam, Juan Gonzalez,
TIAA, and TIAA-CREF Individual & Institutional Services LLC), 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. professional outside vendors or service providers (such as copy-service providers
and document-management consultants) that counsel hire and assign to this
matter, provided such vendors or service providers have first executed a Non-
Disclosure Agreement in the form annexed as an Exhibit hereto;
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 (witnesses shall
not retain a copy of any Confidential Discovery Material). If the Discovery
Material is presented to the witness in a deposition, then a Non-Disclosure
Agreement need not be executed;
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
(subject to the procedures described in Paragraphs 9 through 11 for public filings
on the Electronic Case Filing System).
8. Before disclosing any Confidential Discovery Material to any person referred to in
subparagraphs 7(c), 7(d), 7(f), or 7(g) above, counsel 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 and produce it to opposing counsel upon request.
For the avoidance of doubt, counsel shall not be required to disclose the identities of experts or
witnesses (7(f) and 7(g)) to opposing counsel prior to the time required for such disclosures
under the Court’s Case Management Plan (Dkt. 82) or other governing case management order.
9. In accordance with Rule 9 of this Court’s Individual Practices, any Party filing
documents under seal or with redactions must file with the Court a letter motion and supporting
materials in the manner set forth in Rules 9.A-C of this Court’s Individual Practices. Any
redaction or sealing of a court filing must be narrowly tailored to serve whatever purpose
justifies the redaction or sealing and must be otherwise consistent with the presumption in favor
of public access to judicial documents. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120
(2d Cir. 2006). If the Confidential Discovery Material is being filed by a Party other than the
Party that designated the Discovery Material as confidential, the document should be filed
provisionally with redactions or under seal. The designating Party will then have three business
days to file a motion to permanently seal or redact the Confidential Discovery Material.
10. The Court 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. Nothing in
this Order shall be construed to affect the use of any information at any trial or hearing.
Confidential Discovery Materials offered into evidence at a public hearing or trial shall no longer
be treated as Confidential, unless the designating Party first obtains a separate protective order or
other relief from the Court specifically relating to the materials used during the hearing or trial.
The Party intending to present Confidential Discovery Materials at a hearing or trial must give
the designating arty at least 7 days’ notice, whether through an exhibit list or otherwise. Within
3 days thereafter, the Party whose confidential information is sought to be used may make an
application for relief.
11. In filing Confidential Discovery Material with this Court, or filing portions of any
pleadings, motions, or other papers that disclose such Confidential Discovery Material
(“Confidential Court Submission”), the Parties shall publicly file a redacted version of the
Confidential Court Submission via the Electronic Case Filing System in the manner set forth in
Rules 9.A-C of this Court’s Individual Practices. The Parties shall serve 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. The objecting Party and the Producing Party shall
meet and confer promptly in an attempt to resolve any disagreements. If the Parties cannot reach
agreement, counsel for all affected Parties will address their dispute to this Court in accordance
with paragraph 3(C) of this Court’s Individual Practices.
13. Any Party who requests additional limits on disclosure (such as “attorneys’ eyes only”),
may at any time before the trial of this action serve upon counsel for the recipient Party a written
notice stating with particularity the grounds of the request. Counsel for the receiving Party shall
consider the request in good faith, including the reasons why the Producing Party believes that
the subject Discovery Material contains highly sensitive business or personal information, highly
confidential business or personal information, and/or has significant competitive value, the
disclosure of which would create a substantial risk of serious harm to an individual or to the
business or competitive position of the Producing Party. If the Parties cannot reach agreement
promptly, counsel for all affected Parties will address their dispute to this Court in accordance
with paragraph 3(C) 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. If it is not possible for the Party to provide the Producing
Party with notice at least 10 days before any disclosure, the Party shall in good faith provide the
Producing Party with notice at the soonest reasonable point prior to disclosure.
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. Pursuant to Federal Rule of Evidence 502(d), the Parties agree that if, in connection
with this litigation, a Party claims that it inadvertently disclosed information or documents
subject to a claim of attorney-client privilege, attorney work product protection, or another
privilege, protection or immunity ("Inadvertently Disclosed Information"), such disclosure shall
not constitute or be deemed a waiver or forfeiture of any claim of privilege, protection or
immunity with respect to the Inadvertently Disclosed Information and its subject matter.
a. If a Producing Party makes a claim of inadvertent disclosure, the receiving Party
shall, within five business days, return or destroy all copies of the Inadvertently
Disclosed Information, and provide a certification of counsel that all such
information and documents have been returned or destroyed.
b. Within five business days of the notification that such Inadvertently Disclosed
Information has been returned or destroyed, the Producing Party shall produce a
privilege log with respect to the Inadvertently Disclosed Information.
c. The receiving Party may move the Court for an Order compelling production of
the Inadvertently Disclosed Information. The motion shall be filed under seal and
shall not assert as a ground for entering such an Order the fact or circumstances of
the inadvertent production.
d. The Producing 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.
18. 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 receiving Party must certify its return
or destruction by submitting a written 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.
19. Any Party issuing a subpoena or request for production to a third party shall notify the
third party that the protections of this Order are available to such third party.
20. This Order is entered without prejudice to the right of any Party to apply to the Court at
any time for additional protection or to remove any restriction in this Order. Nothing in this
Order abridges the right of any person to seek to assert other objections. No Party waives any
right it otherwise would have to object to disclosing or producing any information, documents, or
things on any ground not addressed in this Order. Similarly, no Party waives any right to object
on any ground to the use in evidence of any of the material covered by this Order.
21. 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.
22. 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:
Dated: August 15, 2024
/s/ Joel D. Rohlf /s/ Lori A. Martin (w/consent)
Andrew D. Schlichter, Bar No. 4403267 Lori A. Martin
Jerome J. Schlichter* Alan Schoenfeld
Sean E. Soyars* Brad E. Konstandt
Joel D. Rohlf* Ryan Chabot
Nathan D. Stump* Gideon A. Hanft
SCHLICHTER BOGARD LLP WILMER CUTLER PICKERING
100 South Fourth Street, Ste. 1200 HALE AND DORR LLP
St. Louis, MO 63102 7 World Trade Center
Phone: (314) 621-6115 250 Greenwich Street
Fax: (314) 621-5934 New York, New York 10007
aschlichter@uselaws.com Tel: (212) 295-6412
jschlichter@uselaws.com Fax: (212) 230-8888
ssoyars@uselaws.com lori.martin@wilmerhale.com
jrohlf@uselaws.com alan.schoenfeld@wilmerhale.com
nstump@uselaws.com brad. □□□□□□□□□□□□□□□□□□□□□□□□
*admitted pro hac vice ryan.chabot@wilmerhale.com
gideon.hanft@wilmerhale.com
Counsel for Plaintiffs
Counsel for Defendants Teachers Insurance and
Annuity Association of America and TIAA-CREF
Individual & Institutional Services, LLC
This confidentiality agreement does not bind the Court or any of its
personnel. The Court will retain jurisdiction over the terms and
conditions of this agreement only for the pendency of this litigation.
Any party wishing to make redacted or sealed submissions shall comply
with Rule 6(A) of this Court's Individual Rules of Civil Procedure.
Dated: New York, New York SO ORDERED.
August 16, 2024
Kittens bal. Fetho-
1] HON. KATHERINE POLK FAILLA
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
JOHN CARFORA, et al.,
Plaintiffs,
v. CASE NO. 1:21-cv-08384
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, et al.,
Defendants.
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, _________________________, declare that:
I reside at _______________________________________________________________.
I have read and understand the terms of the Protective Order in the above-captioned
matter pending in the United States District Court for Southern District of New York. I agree to
comply with and be bound by the provisions of the Protective Order. I understand that any
violation of the Protective Order may subject me to sanctions by the Court, civil liability,
criminal liability, or any combination of the foregoing. I submit myself to the jurisdiction of the
United States District Court for the Southern District of New York for the purpose of enforcing
or otherwise providing relief relating to the Protective Order. I shall not divulge any materials or
information, or copies of materials or information, designated “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” obtained in accordance with the
Protective Order, or the contents of such materials or information, to any person other than those
specifically authorized by the Protective Order. I shall not copy or use such materials or
information except for the purposes of this litigation and in accordance with the terms of the
Protective Order.
As soon as practicable, but no later than thirty (30) calendar days after final termination
of this litigation, I shall destroy any materials or information in my possession designated
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” or “ATTORNEY’S EYES ONLY,” or
return them to the attorney from which I received such materials or information. I shall also
destroy or return to that attorney, at that time, all copies, excerpts, summaries, notes, digests,
abstracts, and indices relating to such materials or information.
I declare under penalty of perjury that the foregoing is true and correct.
Executed: _______________________________ Date: __________________________