The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
WASHINGTON STATE INVESTMENT : Civil Action No. 1:17-cv-08118-PGG-BCM
BOARD, :
: STIPULATED CONFIDENTIALITY
Plaintiff, : AGREEMENT AND [PROPOSED]
: PROTECTIVE ORDER
vs. :
:
ODEBRECHT S.A., CONSTRUTORA
:
NORBERTO ODEBRECHT S.A., and
:
ODEBRECHT ENGENHARIA E
:
CONSTRUÇÃO S.A.,
:
:
Defendants.
:
x
BARBARA MOSES, United States Magistrate 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 non-public 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.
THEREFORE, 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);
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(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;
(e) any information that the Producing Party reasonably believes must be
designated as Confidential to comply with applicable law; or
(f) 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 Governed 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
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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 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 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;
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(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, 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, 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 paragraph 3 of this Court’s Individual Practices, any party filing
documents under seal 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 [dis]closure is essential to preserve higher values and is
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narrowly tailored to serve that interest.’” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110,
120 (2d Cir. 2006) (citation omitted).
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.
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 copy of the Confidential
Court Submission via the Electronic Case Filing System. The Parties shall 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 2(b) 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.
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If the Parties cannot reach agreement promptly, counsel for all affected Parties will address their
dispute to this Court in accordance with paragraph 2(b) 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 ten 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. 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 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
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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.
18. 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.
19. 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: January 8, 2025 ROBBINS GELLER RUDMAN
& DOWD LLP
DOUGLAS R. BRITTON
MATTHEW J. BALOTTA
(2
Wap eu?)
DOUGLAS R. BRITTON
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Telephone: 619/231-1058
619/231-7423 (fax)
dougb@regrdlaw.com
mbalotta@rgrdlaw.com
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4925-6775-6299.v1
ROBBINS GELLER RUDMAN
& DOWD LLP
SAMUEL H. RUDMAN
DAVID A. ROSENFELD
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: 631/367-7100
631/367-1173 (fax)
srudman@rerdlaw.com
drosenfeld@rgrdlaw.com
Attorneys for Plaintiff
DATED: January 8, 2025 CLEARY GOTTLIEB STEEN
& HAMILTON LLP
VICTOR L. HOU
THOMAS S. KESSLER
PATRICK C. SWIBER
THOMAS S. KESSLER
One Liberty Plaza
New York, NY 10006
Telephone: 212/225-2000
212/225-3999 (fax)
vhou@cgsh.com
tkessler@cgsh.com
pswiber@cgsh.com
Attorneys for Defendants
* * *
ORDER
IT IS SO ORDERED.
DATED: January 10, 2025 i ee oR
THE HONORABLE BARBARA MOSES
UNITED STATES MAGISTRATE JUDGE
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4925-6775-6299.v1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
WASHINGTON STATE INVESTMENT : Civil Action No. 1:17-cv-08118-PGG-BCM
BOARD, :
: NON-DISCLOSURE AGREEMENT
Plaintiff, :
:
vs. :
:
ODEBRECHT S.A., CONSTRUTORA
:
NORBERTO ODEBRECHT S.A., and
:
ODEBRECHT ENGENHARIA E
:
CONSTRUÇÃO S.A.,
:
:
Defendants.
:
x
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 I received it. By acknowledging
these obligations under the Protective Order, I understand that I 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: ______________________
NAME
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