The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Middesk, Inc.
CIVIL ACTION NO. 1:25-CV-02677-PKC
Plaintiff,
v. X[PXRXOXPXOXSXEXDX] STIPULATED
PROTECTIVE ORDER
Osiris Ratings, Inc. et al.,
Defendants.
WHEREAS, Plaintiff Middesk, Inc. (“Plaintiff” or “Middesk”) and Defendants Osiris
Ratings, Inc. d/b/a Baselayer (“Baselayer”), Jonathan Awad (“Awad”), and Josh Leviloff
(“Leviloff”) (together, the “Defendants”), each a party to the above-captioned action (“Action”),
may seek discovery of documents, information, or other materials that may constitute or contain
trade secrets or other confidential research, development, or commercial information of the parties
or third parties within the meaning of Rule 26(c) of the Federal Rules of Civil Procedure (“Fed. R.
Civ. P.”) or that may be subject to confidentiality limitations on disclosure due to federal laws, state
laws, and privacy rights and as set forth below; and
WHEREAS, the parties, through their respective counsel, stipulate that good cause exists
for the entry of this Protective Order pursuant to Fed. R. Civ. P. 26(c) to protect against improper
disclosure or use of confidential information produced or disclosed in this Action.
NOW THEREFORE, pursuant to Fed. R. Civ. P. 26(c), upon the stipulation and consent of
the parties and for good cause shown, the Court hereby ORDERS that:
1. Scope of Protective Order. This Protective Order shall apply to all information
designated pursuant to ¶ 4 of this Protective Order, including documents and things produced or
within the scope of discovery in this Action, all deposition testimony, documents or things produced
in response to requests for the production, answers to interrogatories, responses to requests for
admission, and all other discovery taken pursuant to the Federal Rules of Civil Procedure, as well
as hearing or trial transcripts, matters in evidence, pleadings and other documents filed with the
Court, and any other information furnished, directly or indirectly, by or on behalf of any party to
this Action or any Third Party to the extent such material is designated “CONFIDENTIAL
INFORMATION” or “HIGHLY CONFIDENTIAL INFORMATION” in accordance with ¶ 2 of
this Protective Order.
This Protective Order shall also govern any designated record of information produced in
this Action pursuant to required disclosures under any federal procedural rule or Southern District
of New York local rule, and any supplementary disclosures thereto.
2. Definitions. The following terms, as used herein, shall have the following
meanings:
a. “CONFIDENTIAL INFORMATION” means all information, in any form,
that constitutes “confidential research, development or commercial information” within the
meaning of Fed. R. Civ. P. 26(c)(1), as well as all information that is not generally known to the
public or to competitors and that relates to technical information, commercial information,
proprietary business information, product research, product development, employment information,
product manufacturing, financial performance (whether historical or future), marketing, sources of
supply, or strategic planning, any information the disclosure of which would, in the good faith
judgment of the producing party, be detrimental to the conduct of that producing party’s business or
its customers or clients, or any information of or about a Third Party, including parents, subsidiaries
and/or affiliates, which the Party is under an obligation to keep confidential. The designation of
“CONFIDENTIAL INFORMATION” by the producing party constitutes a representation of that
party that it reasonably and in good faith believes that the designated material constitutes, contains,
reveals, relates to, or reflects the information described in this paragraph.
b. “HIGHLY CONFIDENTIAL INFORMATION” means all information, in
any form, which the designating party reasonably and in good faith believes is “CONFIDENTIAL”
as set forth under ¶ 2(a) above and contains highly sensitive commercial, financial, or trade
secret/proprietary information that the designating party reasonably, and in good faith, believes the
disclosure of which, absent the protections of this Protective Order, would likely have a significant
effect on, or harm, its business, its current or future business strategies or decisions, or its
competitive position. The parties agree to work in good faith and utilize their best efforts to handle
such information appropriately to restrict the improper dissemination of trade secrets and other
HIGHLY CONFIDENTIAL INFORMATION.
c. “Third Party” or “Third Parties” means any person or entity who is not a
named party in this Action.
3. Third Parties under the Protective Order. If a Third Party provides discovery to
any party in connection with this Action, and if the Third Party so elects, then the provisions of this
Protective Order shall apply to such discovery, and the parties will treat all information that is
produced by such Third Party in accordance with the terms of this Protective Order to the extent it
is designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL INFORMATION. If any party
serves any discovery or a subpoena upon a Third Party, the serving party will concurrently provide
the Third Party with a copy of this Protective Order. Under such circumstances, the Third Party
shall have the same rights and obligations under this Protective Order as held by the parties to this
Action. Because Third Parties may be requested to produce documents containing information that
a party considers CONFIDENTIAL or HIGHLY CONFIDENTIAL, all documents produced by a
Third Party in this Action shall be treated as if designated CONFIDENTIAL or HIGHLY
CONFIDENTIAL INFORMATION hereunder for a period of seven (7) days after production to
allow the parties time to review the documents and make any appropriate designations hereunder.
4. Designations and Redactions. Each party shall have the right to designate
information as CONFIDENTIAL or HIGHLY CONFIDENTIAL INFORMATION, subject to this
Protective Order. To the extent that material is designated CONFIDENTIAL or HIGHLY
CONFIDENTIAL INFORMATION, such material shall only be revealed to or used by limited
categories of individuals, as provided for herein, and shall not be communicated or disclosed in any
manner, either directly or indirectly, to any person or entity except as provided herein. Any copies
of such material, abstracts, summaries, or information derived therefrom, and any notes or other
records regarding the contents thereof, shall also be deemed CONFIDENTIAL or HIGHLY
CONFIDENTIAL INFORMATION, and the same terms regarding confidentiality of these
materials shall apply as applied to the originals. The procedures for designating materials as
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION are as follows:
a. Designation of Documents and Things. The parties and any Third Parties
shall label or mark each page of each document and thing that constitutes or contains
CONFIDENTIAL or HIGHLY CONFIDENTIAL INFORMATION with the legend
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” or otherwise mark or designate in writing
that the materials contain CONFIDENTIAL or HIGHLY CONFIDENTIAL INFORMATION and
are subject to the Protective Order when the document or thing is produced to the receiving party.
Anything that cannot be so marked shall be designated by placing the appropriate legend on a
container or package in which the thing is produced or on a tag attached thereto. Each page of each
document produced pursuant to discovery in this Action shall also bear a unique identifying
number.
Documents and things produced without “CONFIDENTIAL INFORMATION,” “HIGHLY
CONFIDENTIAL INFORMATION,” or other applicable legends shall not be subject to this
Protective Order unless otherwise agreed by the parties, ordered by the Court, or otherwise
designated CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION in accordance
with the provision of ¶ 9 of this Protective Order.
Only persons eligible under ¶¶ 13-14 may receive HIGHLY CONFIDENTIAL
INFORMATION. Such persons shall initially treat all information obtained during or from any
inspection as containing HIGHLY CONFIDENTIAL INFORMATION until such time as copies of
documents or things from the inspection are produced, and, thereafter, such produced documents
and things shall be treated in accordance with any confidentiality designation appearing on the
document or thing at the time of its production.
b. Designation of Interrogatories, Requests for Admission, and Written
Testimony. Any response to written interrogatories or requests for admission or any testimony
adduced at a deposition upon written questions (or any portion of any of the foregoing) that
constitutes or contains CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION
shall be labeled or marked by the party providing the response or testimony as containing
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION.
c. Designation of Deposition Transcripts. Deposition transcripts containing
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION may be designated as
subject to this Protective Order either on the record during the deposition or by providing written
notice within thirty (30) days following receipt of the official transcripts of the deposition.
d. Designation of Hearing Testimony or Argument. With respect to
testimony elicited during hearings and other proceedings, whenever counsel for any party deems
that any question or line of questioning calls for the disclosure of CONFIDENTIAL and/or HIGHLY
CONFIDENTIAL INFORMATION, counsel may designate on the record prior to such disclosure
that the disclosure is subject to confidentiality restrictions. Whenever matter designated
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION is to be discussed in a
hearing or other proceeding, any party claiming such confidentiality may ask the Court to have
excluded from the hearing or other proceeding any person who is not entitled to receive information
so designated under this Protective Order.
e. Redactions. Documents and things produced or made available for
inspection may be redacted, in good faith by the producing party, of CONFIDENTIAL and/or
HIGHLY CONFIDENTIAL INFORMATION that is subject to the attorney-client privilege, work-
product immunity, or any other privilege or immunity. Each such redaction, regardless of size, shall
be clearly labeled as “Redacted Privilege.” This Paragraph shall not be construed as a waiver of any
party’s right to seek disclosure of redacted information. All documents redacted or withheld in their
entirety based on attorney-client privilege, work-product immunity, or any other privilege or
immunity shall be listed on a privilege log in accordance with Fed. R. Civ. P. 26(b)(5) and
exchanged at a mutually agreeable date and time.
5. Limitations on Attendance at Depositions. Counsel for a producing party may
request that all persons other than the witness, counsel for the witness (who signs the Undertaking
attached as Exhibit A if a non-party witness), the court reporter, the videographer, and those
individuals specified in ¶¶ 13-14, as applicable, exit the deposition room during the portion of the
deposition that inquires about or discloses subject matter that counsel for the producing party
believes to be CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION hereunder.
If individuals other than those specified in the previous sentence fail to exit the deposition room
during any portion of the deposition that inquires about or discloses what counsel for the producing
party believes to be CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION,
counsel for the producing party may seek relief from the appropriate Court and, pending resolution
of its request for relief, instruct the witness not to answer questions relating to, or limit disclosure
of, the CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION at issue.
6. Limitations on Attendance at Hearings or Trial. Counsel shall confer with the
Court regarding procedures to protect the confidentiality of any material marked, labeled, or
otherwise designated CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION that
a party or any of its witnesses may use, refer to, disclose, or admit into evidence during trial or any
hearing in this Action.
7. Proper Use and Disclosure of Designated Information. Subject to the limitations
and restrictions of this Protective Order, any further order regarding confidentiality that the Court
may enter, any material marked, labeled, or otherwise designated CONFIDENTIAL and/or
HIGHLY CONFIDENTIAL INFORMATION as described in this Protective Order shall be
disclosed, disseminated, and used by the receiving party solely for purposes of the prosecution or
defense of this Action. Nothing herein shall be construed to affect in any way the admissibility of
any document, testimony or other evidence at trial.
Material designated CONFIDENTIAL and/or HIGHLY CONFIDENTIAL
INFORMATION, and all information derived therefrom, shall be used only by persons permitted
access to such information under this Protective Order, shall not be disclosed by the receiving
parties to any party or person not entitled under this Protective Order to have access to such material,
and shall not be used by the receiving parties for any purpose other than in connection with this
Action, including without limitation for any research, development, manufacture, patent
prosecution or other patent proceedings, financial, commercial, marketing, regulatory, business, or
other competitive purpose (except for settlement of the above-captioned Action).
8. Storage of CONFIDENTIAL and/or HIGHLY CONFIDENTIAL
INFORMATION. The recipient of any CONFIDENTIAL and/or HIGHLY CONFIDENTIAL
INFORMATION shall maintain such information in a secure and safe area and shall exercise the
same standard of due and proper care with respect to the storage, custody, use and/or dissemination
of such information as is exercised by the recipient with respect to their own proprietary
information.
9. Inadvertent Production of CONFIDENTIAL and/or HIGHLY
CONFIDENTIAL INFORMATION. If a party inadvertently produces or provides discovery of
any CONFIDENTIAL or HIGHLY CONFIDENTIAL INFORMATION without labeling or
marking it as provided in this Protective Order, the producing party may give written notice to the
receiving party or parties, within ten (10) business days after becoming aware of the inadvertent
production, that the document, thing or other discovery information, response or testimony is
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION and should be treated as
such in accordance with the provisions of this Protective Order. The producing party will also
provide copies of the properly marked information (e.g., documents, discovery responses,
transcripts, things, and/or all other information within the scope of this Protective Order). Upon
receipt of such notice and properly marked information, the receiving party or parties shall return
or destroy said unmarked or incorrectly marked information to the extent practicable and not retain
copies thereof, and provide certification of the same, and shall undertake a best effort to correct
any disclosure of such information contrary to the redesignation. Prior to receipt of such notice,
disclosure of such documents, things, information, responses and testimony to persons not
authorized to receive CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION shall
not be deemed a violation of this Protective Order. Any person who received CONFIDENTIAL
and/or HIGHLY CONFIDENTIAL INFORMATION prior to such notice shall execute the
Undertaking in Exhibit A, which shall be sent via email to counsel for the producing party.
10. Limitations on Advice to Clients. It is understood that counsel for a party may
give advice and opinions to their client based on their evaluation of designated CONFIDENTIAL
and/or HIGHLY CONFIDENTIAL INFORMATION received by the party, provided that such
rendering of advice and opinions shall not reveal the content of such information, except by prior
written agreement with counsel for the producing party.
11. Discovery of Third-Party Information. A party in this Action may temporarily
withhold production of otherwise discoverable information sought in a discovery request
(e.g., interrogatory, request for production, request for admission) if the party is under an obligation
to a third party not to disclose such information (e.g., by prior agreement of confidentiality). In
such an event (except for information subject to another protective order or confidentiality order by
another court), the producing party shall:
a. Timely serve a written objection to the production of the requested
information on the basis of its obligation to a third party not to disclose such information; and
b. Promptly take whatever action is required with respect to the third party
whose confidentiality interests are implicated to permit production of the information in the Action.
12. Inadvertent Production of Privileged or Work Product Information.
Notwithstanding anything to the contrary in Fed. R. Civ. P. 26(b)(5)(B), the inadvertent production
or disclosure of any document or tangible thing (including information) subject to a claim of
attorney-client privilege, work product immunity, or any other applicable privilege or immunity,
shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claims of
privilege or work product immunity. In such an event, the producing party shall send to each
receiving party a written notice, making the claim of privilege concerning the inadvertently
produced or disclosed document or thing and stating the basis for the claim of privilege within a
reasonably prompt period of time after becoming aware of such inadvertent or mistaken production.
Upon receipt of a written request from the producing party, the receiving party shall make best
efforts to return, sequester, or destroy the material over which the producing party claims privilege
within five (5) business days. Absent a ruling from the Court to the contrary, the receiving party
shall not utilize the information contained in the inadvertently produced documents or things for
any purpose or disseminate or transmit such information. Nothing herein limits the receiving party’s
ability to contest that any such document or thing is protected from discovery by the attorney-client
privilege, work product protection, or other privilege or protection from discovery. The party
claiming the privilege or immunity shall have the burden of proving that such privilege or immunity
exists.
13. Access to CONFIDENTIAL INFORMATION. Material marked, labeled or
otherwise designated CONFIDENTIAL INFORMATION as described in this Protective Order
shall be deemed and treated as CONFIDENTIAL INFORMATION hereunder, unless and until the
Court rules to the contrary, and access thereto or disclosure thereof shall be limited, unless and until
the Court rules that there may be further disclosure, to the following individuals:
a. Litigation counsel of record in this Action, and their partners, associates,
attorneys, data entry, information processing, computer support, artist, translating, stenographic,
clerical, and paralegal employees or agents whose duties and responsibilities in connection with the
prosecution or defense of this action require access to material designated CONFIDENTIAL
INFORMATION.
b. For party, up to one (1) in-house counsel with legal functions (or, if a party
does not have in-house counsel, then one employee designated by the party, who is not the Chief
Executive Officer, who is assisting outside counsel in the Action) and who, for the duration of
this Action and for 18 months after the later of: (i) the last access or review of CONFIDENTIAL
INFORMATION, or (ii) termination of this Action (including any appeals), will not have
decision-making responsibility for product design, business development, marketing, or
commercial pricing, provided that outside counsel have identified these individuals via email
correspondence and provide executed Undertakings (Exhibit A) for each designee to opposing
counsel. Support staff and paralegals must also execute the Undertaking in Exhibit A.
c. Outside consultants or experts and their staff retained by the parties or their
attorneys for purposes of this Action, who are not objected to pursuant to ¶ 15, and who first agree
to be bound by the terms of this Protective Order. Consultants, experts, their associates, assistants,
staff or any couriers need to execute the Undertaking in Exhibit A pursuant to ¶ 15.
d. The Court before which this Action is pending and its authorized staff.
e. Court reporters, videographers, and their respective staffs employed in
connection with this Action.
f. Any interpreter hired by the parties’ outside counsel for the purpose of
prosecution or defense of this Action, any typist or transcriber used by the interpreter who first
agrees to be bound by the terms of this Protective Order.
g. Non-parties specifically retained to assist outside counsel of record with
copying and computer services necessary for document handling, trial consultants and mock jurors,
other litigation support personnel (e.g., e-discovery vendors, graphic designers and animators,
database entry personnel), and other third-party vendors; and
h. Any other person as to whom the parties agree in writing.
14. Access to HIGHLY CONFIDENTIAL INFORMATION. Material marked,
labeled or otherwise designated HIGHLY CONFIDENTIAL INFORMATION as described in this
Protective Order shall be deemed and treated as HIGHLY CONFIDENTIAL INFORMATION
hereunder, unless and until the Court rules to the contrary, and access thereto or disclosure thereof
shall be limited, unless and until the Court rules that there may be further disclosure, to those
persons described in ¶¶ 13(a), (c), (d), (e), (f), (g), and (h) and only on the terms provided therein.
15. Retention of Experts and Outside Consultants. Disclosure of CONFIDENTIAL
and/or HIGHLY CONFIDENTIAL INFORMATION shall not be made to any such outside
consultant described in ¶ 13(c) for a period of seven (7) business days after serving the producing
party with a signed Undertaking in the form of the annexed Exhibit A. Concurrent with the
disclosure of such an expert/outside consultant, the disclosing party must provide (1) a current resume
or curriculum vitae of the expert/outside consultant including a listing of all employment or
consulting relationships for the last five years, (2) a confirmation that the expert/outside consultant
has performed a conflict check and is not aware of any actual or potential conflicts of interest, and
(2) a list of legal matters, including in federal and state court and at the United States Patent and
Trademark Office, in which he or she has served as a consulting or testifying expert within the last
four (4) years.
Counsel for the party providing discovery may, within a seven (7) business day period, serve
a notice of objection if a reasonable basis for such objection exists. If the notice is served, the
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION will not be disclosed to
such outside consultant until such objection is resolved pursuant to this paragraph. Within ten (10)
business days after service of the objection, if the parties are unable to reach any agreement over
the disclosure of CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION to the
expert or consultant, counsel for the objecting party may subsequently move the Court for an order
denying disclosure of any CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION
to the outside expert or consultant as to which a notice of objection has been served. If the objecting
party seeks an Order, the CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION
shall not be disclosed to the outside expert or consultant until the Court rules or the parties agree
that such disclosure may be made. Failure to object within ten (10) days and in accordance with
Local Rule 37.2 and the Individual Practices in Civil Cases for this Court shall operate as a waiver
of this objection, unless the parties agree in writing to extend this deadline while meeting and
conferring regarding the objection.
16. Third-Party Vendors. Counsel may use the services of third-party vendors to
provide services such as document review, electronic discovery support, computerized legal
support, and management services for the purpose of encoding, loading into a computer and storing
and maintaining for information control and retrieval purposes, transcripts of depositions, hearing,
trials, pleadings, exhibits marked by any party, briefs and accompanying affidavits and appendices,
documents produced by any party, or a party’s own attorney work product, all of which may contain
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION. The vendor shall return
to the party’s counsel or confirm destruction of all copies of transcripts or other documents
containing CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION within thirty
(30) days of the conclusion of this Action, including any Appeals.
17. Disclosure to Other Individuals. Disclosure of CONFIDENTIAL and/or
HIGHLY CONFIDENTIAL INFORMATION may be made to individuals not identified in
¶¶ 13-14, above, as follows:
a. CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION
may be disclosed to any person not otherwise identified in ¶¶ 13-14 above as agreed in writing by
the party that designated such information CONFIDENTIAL and/or HIGHLY CONFIDENTIAL
INFORMATION.
b. Any party may move the Court for an Order that a person not identified in
¶¶ 13-14 above (other than an employee, consultant, or board member of a Party, except as provided
in subsection c. below) be given access to CONFIDENTIAL and/or HIGHLY CONFIDENTIAL
INFORMATION after first signing an Undertaking in the form of Exhibit A attached hereto.
Counsel for the moving party shall retain the original of each such signed Undertaking. Service of
the Undertaking shall be required.
c. CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION of a
producing party may also be disclosed to and/or used to examine, at deposition and at trial (or other
court hearing): (i) an individual who either prepared, received or reviewed the CONFIDENTIAL
and/or HIGHLY CONFIDENTIAL INFORMATION prior to filing of this Action or previously had
access or knowledge of the CONFIDENTIAL and/or HIGHLY CONFIDENTIAL
INFORMATION, as demonstrated on the face of the CONFIDENTIAL and/or HIGHLY
CONFIDENTIAL INFORMATION itself, a producing party’s claim, or by foundation testimony
elicited during a deposition or at trial; (ii) a currently employed expert of a producing party, and/or;
(iii) a witness designated for the producing party under Federal Rule 30(b)(6) concerning any topic
to which the CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION is relevant.
18. Confidentiality of Party’s Own Documents. A party may disclose or use in any
manner or for any purpose, any information or documents from that party’s own files that the party
itself has designated CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION.
19. Inadvertent Disclosure. If CONFIDENTIAL and/or HIGHLY CONFIDENTIAL
INFORMATION is disclosed or comes into the possession of any person not authorized to receive
such information under this Protective Order, the party responsible for the disclosure shall:
(a) within three (3) days of becoming aware of such disclosure inform the designating party of all
pertinent facts relating to such disclosure, including the identity of the person to whom the
inadvertent disclosure was made; (b) use its best efforts to obtain the prompt return of the original
and all copies of any such CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION
and to bind such unauthorized person or party to the terms of this Protective Order; (c) within three
(3) days of becoming aware of such disclosure, inform such unauthorized person or party of all
provisions of this Protective Order; and (d) request such unauthorized person or party to sign the
Undertaking in the form attached hereto as Exhibit A. The executed Undertaking shall be served
upon counsel of record for the producing party within three (3) days of its execution by the person
or party to whom CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION was
disclosed. The requirements set forth in this Paragraph shall not prevent the producing party from
applying to the Court for further or additional relief. Disclosure made pursuant to this section shall
not waive the attorney/client privilege or work product protection and will not be admissible for
any purpose.
20. Filing Under Seal . Any information designated C ONFIDENTIAL and/or
HIGHLY CONFIDENTIAL INFORMATION, if filed with the Court in connection with this
Action, shall be filed under seal in accordance with the procedures in Section 5 of the Individual
Practices in Civil Cases for this Court.
Notwithstanding any other provision, no document may be filed with the Clerk under seal
without a further Order of this Court addressing the specific documents or portions of documents
to be sealed. Any application to seal shall be accompanied by an affidavit or affidavits and a
memorandum of law, demonstrating that the standards for sealing have been met and specifically
addressing the applicability of Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-120 (2d
Cir. 2006) and any other controlling authority. Unless otherwise ordered, a party seeking to file an
opposing party’s confidential information shall so advise the opposing party fourteen (14) days in
advance specifying the precise portion of the information the party seeks to use, the general purpose
thereof and any redactions to which the party does not object. Within seven (7) days thereafter, the
party whose confidential information is sought to be used may make an application to seal in
accordance with the first paragraph of this Order, indicating the portion or portions of the
information it seeks to have sealed. Nothing herein is intended to alter or modify the applicability
of Rule 5.2, Fed. R. Civ. P., to this case. The redactions expressly authorized by Rule 5.2 may be
made without further application to the Court.
In addition, any document that is to be filed with the Court and that contains or discloses
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION shall be marked “FILED
UNDER SEAL” on its cover page. Material designated CONFIDENTIAL and/or HIGHLY
CONFIDENTIAL INFORMATION and filed under seal shall be maintained in such manner as
provided for by the Court. The burden of proving that such document should be sealed, however,
shall at all times remain on the party that designated the information CONFIDENTIAL and/or
HIGHLY CONFIDENTIAL INFORMATION.
21. Challenging Designations. The acceptance by any party of material designated
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION shall not constitute an
admission or concession, or permit an inference that such material is, in fact, confidential.
Any receiving party may at any time request that the designating party cancel or modify the
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION designation with respect
to any document, object or information. Such request shall be made to counsel for the designating
party in writing, and shall particularly identify the designated CONFIDENTIAL and/or HIGHLY
CONFIDENTIAL INFORMATION that the receiving party contends is not CONFIDENTIAL
and/or HIGHLY CONFIDENTIAL INFORMATION and the reasons supporting its contention.
Within five (5) business days after receipt of such a request, the designating party shall either
agree to modify the designation or provide the reasons supporting its contention that the material
should remain designated CONFIDENTIAL or HIGHLY CONFIDENTIAL INFORMATION. If
the designating party does not agree to remove the CONFIDENTIAL and/or HIGHLY
CONFIDENTIAL INFORMATION designation, then the party contending that such documents or
material are not confidential may, in accordance with the procedures set forth in the [Section 6(B)
of the Individual Practices in Civil Cases for this Court] for resolution of discovery disputes,
request that the Court remove such material from the restrictions of this Protective Order. The party
asserting confidentiality shall have the burden of proving that the material designated
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION warrants protection under
this Protective Order.
22. No Expansion of Federal Rules of Civil Procedure. Nothing in this Protective
Order shall be construed to be an implied admission or to affect or govern the scope of discovery in
this Action, or to preclude any party from moving the Court for a further order pursuant to Fed. R.
Civ. P. 26(c), or any other provision of the Federal Rules of Civil Procedure. Nothing contained in
this Protective Order shall be construed to require production or disclosure of any CONFIDENTIAL
and/or HIGHLY CONFIDENTIAL INFORMATION deemed by counsel for the party possessing
such material to be protected from disclosure by the attorney-client privilege or the attorney work-
product immunity, or any other privilege or immunity, so long as the withheld materials are
identified in the manner required by the Federal Rules of Civil Procedure by the producing party.
This Protective Order, however, shall not prevent the parties from agreeing that certain categories
of documents need not be identified, nor shall it prevent one or more parties from seeking relief
from the Court if, e.g., identification of individual documents would be unduly burdensome. This
Protective Order shall not preclude any party from moving the Court for an order compelling
production or disclosure of such material.
23. New Parties to this Action. In the event additional parties are added, join, or are
joined in this Action, they shall not have access to CONFIDENTIAL and/or HIGHLY
CONFIDENTIAL INFORMATION until all parties agree that the new party will be fully bound
by this Protective Order or an alternative protective order is agreed to by all parties and entered by
the Court.
24. Miscellaneous. This Protective Order shall not be construed to prevent any of the
parties, or any Third Party, from applying to the Court for relief or further or additional protective
orders, or from agreeing between or among themselves to modifications of this Protective Order,
subject to the approval of the Court. The Protective Order shall not preclude the parties from
enforcing their rights against any Third Party not associated with this Action who is believed to be
violating their rights.
25. Other Proceedings. By entering this Protective Order and limiting the disclosure
of information in this Action, the Court does not intend to preclude another court from finding that
information may be relevant and subject to disclosure in another case. Any person or party subject
to this Protective Order who becomes subject to a subpoena or motion to disclose another party’s
information designated CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION
pursuant to this Protective Order shall notify that party of the subpoena or motion before making
such disclosure so that the party may have an opportunity to appear and be heard on whether that
information should be disclosed.
26. Publicly Available Information. This Protective Order shall not apply to any
information of the parties that: (a) the producing or designating party or parties agree(s) should not
be designated as CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION; (b) the
producing or designating party or parties agree(s), or the Court rules, is already public knowledge;
(c) the producing or designating party or parties agree(s), or the Court rules, has become public
knowledge other than as a result of disclosure by the receiving party, its employees, or agents in
violation of this Protective Order; or (d) the producing or designating party or parties agree(s), or
the Court rules, has come or shall come into the receiving party’s legitimate knowledge or
possession independently of the producing party under conditions such that its use and/or public
disclosure by the receiving party would not violate any obligation to an opposing party to this
Action. The restrictions and obligations set forth herein shall not prohibit discussions of any
material designated CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION with
any person who already has or obtains legitimate possession thereof.
27. Survival of Obligations under Protective Order. With respect to any
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION, this Protective Order
shall survive the final termination of this Action to the extent the information in such material is not
or does not become known to the public and continues to be binding upon all persons to whom
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION is disclosed hereunder.
Upon final termination of this Action, including all appeals, the outside litigation firm counsel listed
herein for each party may retain (a) one (1) copy of all deposition transcripts and exhibits thereto,
(b) one (1) copy of all trial or hearing transcripts (including trial or hearing exhibits, and further
including demonstratives), (c) one (1) copy of all pleadings and other papers filed with the Court
and exhibits thereto, written discovery, and expert reports and exhibits thereto, (d) all
correspondence and exhibits thereto, and (e) any documents, things, and copies to the extent they
include or reflect the receiving attorney’s work product.
Within ninety (90) days after final termination of this Action, including all appeals, except
as permitted by this Protective Order, all other copies and samples of material designated
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION and any other summaries,
abstracts, excerpts, indices and descriptions of such material, and information derived from such
material that are recorded in any tangible form, shall be: (i) assembled and returned (except for any
that may be retained by the Court) to the producing party; or, alternatively, (ii) counsel for the
receiving party may certify in writing the destruction thereof. Accordingly, unless otherwise
permitted by this Protective Order, upon final termination of this Action, no one other than the
outside litigation counsel listed herein shall retain any copies or samples of any material designated
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION. As to CONFIDENTIAL
and/or HIGHLY CONFIDENTIAL INFORMATION stored, as may be applicable, in email,
document management systems, or backup tapes or disks, the receiving party shall apply reasonable
efforts to delete and/or restrict access to such material.
28. Waiver or Termination of Order. No part of the restrictions imposed by this
Protective Order may be waived or terminated, except by an Order of the Court for good cause
shown. The restrictions provided for herein shall not terminate upon the conclusion of this Action,
but shall continue until further Order of this Court. The termination of employment of any person
with access to any CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION shall
not relieve such person from the obligation of maintaining the confidentiality of such information.
29. Modification of Order; Prior Agreements. This Protective Order may be
modified, and any matter related to it may be resolved, by written stipulation of the parties without
further Order of the Court. This Protective Order supersedes any agreements between the parties
regarding the confidentiality of particular information entered into before the date of this Protective
Order.
30. Section Captions. The title captions for each section of this Protective Order are
for convenience only and are not intended to affect or alter the text of the sections or the substance
of the Order.
31. Days. All references to “days” in this Protective Order shall be construed as calendar
days, unless otherwise specifically indicated.
32. Order Applicable upon Filing with the Court. Upon filing this Protective Order
with the Court, the Parties agree to treat it as “So Ordered,” subject to any future modifications by
agreement of the Parties or by the Court.
It is SO ORDERED this 22nd day of APril 2025.
a "
UNITED STATES DISTRICT COURT JUDGE
Stipulated by:
/s/ Jason D. Burns /s/ Matthew D. Gorman
Jason D. Burns Matthew D. Gorman
Shira M. Poliak WILSON SONSINI GOODRICH & ROSATI,
GREENBERG TRAURIG, LLP Professional Corporation
One Vanderbilt Avenue One Boston Place
New York, NY 10017 201 Washington Street, Suite 2000
Telephone: (212) 801-9294 Boston, MA 020108
Facsimile: (212) 801-6400 Telephone: (617) 598-7800
Jason.Burns@gtlaw.com Facsimile: (866) 974-7329
Shira.Poliak@gtlaw.com mgorman@wsegr.com
Justin K. Victor (phy) Heather D. Giles
Fredric J. Bold, Jr. (phy) WILSON SONSINI GOODRICH & ROSATI,
Rushton Pope (phy) Professional Corporation
GREENBERG TRAURIG, LLP 1301 Avenue of the Americas, 40“ Floor
3333 Piedmont Road, NE, Suite 2500 New York, NY 10019
Atlanta, GA 30305 Telephone: (212) 999-5800
Telephone: (678) 553-2100 Facsimile: (866) 974-7329
Facsimile: (678) 553-2212 hdiles@wsgr.com
Victorj@gtlaw.com
Rick.Bold@gtlaw.com Counsel for Defendants Osiris Ratings, Inc.
Rushton.Pope@gtlaw.com and Jonathan Awad
Counsel for Plaintiff Middesk, Inc.
Page 21 of 25
/s/ Anthony M. Rainone
Anthony M. Rainone
BRACH EICHLER LLC
101 Eisenhower Parkway
Roseland, New Jersey 07068
Telephone: (973) 364-8372
Facsimile: (973) 618-5972
arainone@bracheichler.com
Counsel for Defendant Josh Leviloff
EXHIBIT A
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Middesk, Inc.
CIVIL ACTION NO. 1:25-CV-02677
Plaintiff,
v.
Osiris Ratings, Inc. d/b/a Baselayer, and
Jonathan Awad, and
Josh Leviloff,
Defendants.
AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER
I, __________________________________________, state that:
a) My home address is ____________________________________________
______________________________________________________________________________
_____________________________________________________________________________.
b) My present employer is __________________________________ and my
present work address is ___________________________________________________________
______________________________________________________________________________
_____________________________________________________________________________.
c) My present title, occupation, or job description is
______________________________________________________________________________
_____________________________________________________________________________.
d) I have read and understand the provisions of the Stipulated Protective Order
entered in this Action, and I will comply with the provisions of that Stipulated Protective Order. I
consent to be subject to the jurisdiction of this Court for enforcement of this Stipulated Protective
Order.
e) I will hold in confidence and not disclose to anyone not qualified under the
Stipulated Protective Order CONFIDENTIAL and/or HIGHLY CONFIDENTIAL
INFORMATION, or any summaries, abstracts, or indices of any CONFIDENTIAL and/or
HIGHLY CONFIDENTIAL INFORMATION, that is disclosed to me or that I prepare.
f) Upon conclusion of the above-captioned Action, including appeal, I will
return or destroy all CONFIDENTIAL and/or HIGHLY CONFIDENTIAL INFORMATION – and
any summaries, abstracts, and indices thereof, and document or materials that I received or
prepared relating thereto – in my possession to outside counsel for the party for whom I was
employed, retained, or acted as witness.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Print Name: ______________________________________
Signature: ______________________________________
Date: ______________________________________