The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPTIMUM COMMUNICATIONS, INC.;
CSC HOLDINGS, LLC,
Plaintiffs, Case No. 25-cv-9785
v.
PROTECTIVE ORDER
APOLLO CAPITAL MANAGEMENT, L.P.;
ARES MANAGEMENT LLC; BLACKROCK
FINANCIAL MANAGEMENT, INC.;
GOLDENTREE ASSET MANAGEMENT LP;
J.P. MORGAN INVESTMENT
MANAGEMENT INC.; LOOMIS, SAYLES &
COMPANY, L.P.; OAKTREE CAPITAL
MANAGEMENT, L.P.; PGIM, INC.; Doe
Entities #1-#1000.
Defendants.
JEANNETTE A. VARGAS, United States District Judge:
WHEREAS, all of 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 certain non-
public and confidential material that will be exchanged pursuant to and during the
course of discovery in this case;
WHEREAS, the Parties, through counsel, agree to the following terms;
WHEREAS, the Parties acknowledge that this Protective Order does not
confer blanket protection on all disclosures or responses to discovery, and that the
protection it affords only extends to the limited information or items that are
entitled, under the applicable legal principles, to confidential treatment;
WHEREAS, the Parties further acknowledge that this Protective Order does
not create entitlement to file confidential information under seal; and
WHEREAS, in light of the foregoing, and based on the representations of the
Parties that discovery in this case will involve confidential documents or
information, the public disclosure of which would cause harm to the producing
person and/or a third party to whom a duty of confidentiality is owed, and to protect
against injury caused by dissemination of confidential documents and information,
this Court finds good cause to issue an appropriately tailored confidentiality order
governing the pretrial phase of this action;
IT IS HEREBY ORDERED that any person subject to this Protective
Order—including, without limitation, the Parties to this action, 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 Protective Order—shall adhere to the following terms:
1. Any person subject to this Protective Order who receives from any
other person subject to this Protective Order any “Discovery
Material” (i.e., information of any kind produced or disclosed
pursuant to and in the course of discovery in this action) that is
designated “Confidential” or “Highly Confidential – Attorneys’ Eyes
Only” or “Highly Confidential – Negotiation Materials” pursuant to
the terms of this Protective Order (together, “Protected Material”)
shall not disclose such Protected Material to anyone else except as
expressly permitted hereunder.
2. The person producing any given Discovery Material may designate
Confidential only such portion of such information (regardless of how
it is generated, stored or maintained), testimony, or tangible things
that are not public and which the person reasonably believes (i) would
not normally be revealed to third parties except in confidence, (ii) are
protected by a right to privacy under applicable data protection laws or
any other applicable law, privilege, or right related to confidentiality
or privacy, (iii) constitute or contain trade secrets or other non-public
confidential commercial information that would qualify for protection
under applicable law, (iv) disclosure of which would be detrimental to
the conduct of the disclosing Party’s or non-party’s business or the
business of any of that Party’s or non-party’s customers or clients, or
(v) any other category of information hereinafter given Confidential
status by the Court.
3. The person producing any given Discovery Material may designate
Highly Confidential – Attorneys’ Eyes Only such highly sensitive,
confidential information or items that constitute proprietary financial,
technical, competitive, or commercially sensitive information
(including but not limited to client information, trade secrets;
information reflecting recent, current, or future business and
marketing plans and activities; information reflecting recent, current,
or future research and development activities; financial valuations
and credit assessments; and confidential information relating to any
ongoing government investigation or action) that the Party maintains
as highly confidential in its business, and related communications, the
disclosure of which to another Party would create a substantial risk of
serious competitive or business harm that could not be avoided by less
restrictive means. This designation also includes information
obtained from a Non-Party pursuant to a Nondisclosure Agreement
(“NDA”) or other contractual provision, unless the Non-Party permits
a different designation in writing.
4. With respect to the Confidential or Highly Confidential – Attorneys’
Eyes Only or Highly Confidential – Negotiation Materials portion of
any Discovery Material other than deposition transcripts and exhibits,
the producing person or that person’s counsel may designate such
portion Confidential by: (a) stamping or otherwise clearly marking
“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” or
“Highly Confidential – Negotiation Materials” the protected portion in
a manner that will not interfere with legibility or audibility; and (b) if
a party seeks to file any Discovery Material containing Protected
Material with the Court, then within 10 business days after the filing
party requests the producing party redact such Protected Material,
the producing party will redact the Protected Material for the filing
party to file, unless such information was redacted at the time of
production.
5. With respect to deposition transcripts, a producing person or that
person’s counsel may designate such portion Confidential or Highly
Confidential – Attorneys’ Eyes Only or Highly Confidential –
Negotiation Materials either by (a) indicating on the record during the
deposition that a question calls for Confidential or Highly Confidential
– Attorneys’ Eyes Only or Highly Confidential – Negotiation Materials
information, in which case the reporter will bind the transcript of the
designated testimony (consisting of both question and answer) in a
separate volume and mark it as “Confidential Information Governed
by Protective Order” or “Highly Confidential – Attorneys’ Eyes Only
Information Governed by Protective Order” or “Highly Confidential –
Negotiation Materials Information Governed By Protective Order”; or
(b) notifying the reporter and all counsel of record, in writing, within
30 days of the conclusion of a deposition, of the specific pages and lines
of the transcript and/or the specific exhibits that are to be designated
Confidential or Highly Confidential – Attorneys’ Eyes Only or Highly
Confidential – Negotiation Materials, in which case all counsel
receiving the transcript will be responsible for marking the copies of
the designated transcript or exhibit (as the case may be) in their
possession or under their control as directed by the producing person
or that person’s counsel. During the 30-day period following the
conclusion of a deposition, the entire deposition transcript will be
treated as if it had been designated Highly Confidential – Negotiation
Materials.
6. If at any time prior to the trial of this action, a producing person
realizes that some portion(s) of Discovery Material previously
produced by the producing person without limitation should be
designated Confidential or Highly Confidential – Attorneys’ Eyes
Only or Highly Confidential – Negotiation Materials, then the
producing person may so designate by so apprising all prior
recipients of the Discovery Material in writing, and thereafter such
designated portion(s) of the Discovery Material will be deemed to be,
and treated as, Confidential or Highly Confidential – Attorneys’ Eyes
Only or Highly Confidential – Negotiation Materials under the terms
of this Protective Order.
7. 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.
8. Where a producing person has designated Discovery Material
Confidential, other persons subject to this Protective Order may
only disclose such Discovery Material or information contained
therein to:
(a) the Parties to this action, their boards of management or
directors, auditors, insurers, and counsel to their insurers;
(b) a Party’s counsel in connection with this litigation and subject
to the terms of this Protective Order, including any paralegal,
clerical and other assistant employed by such counsel and
assigned to this matter;
(c) outside vendors or service providers (such as copy-service
providers and document-management consultants, graphic
production services or other litigation support services) hired by
counsel and assigned to this matter, including computer service
personnel performing duties relating to a computerized
litigation system, provided such person has first executed a Non-
Disclosure Agreement in the form attached hereto;
(d) any mediator or arbitrator engaged by the Parties in this matter
or appointed by the Court, provided such person has first
executed a Non-Disclosure Agreement in the form attached
hereto;
(e) as to any document, its author, addressee, and any other person
indicated on the face of the document as having received a copy;
(f) any witness who, in the good-faith belief of counsel for a Party,
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 attached hereto;
(g) any person retained by a Party 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 attached hereto;
(h) stenographers engaged to transcribe depositions conducted in
this action; and
(i) this Court, including any appellate court, and the court
reporters and support personnel for the same.
9. Before disclosing any Confidential Discovery Material to any person
referenced in subparagraphs 8(c), 8(d), 8(f), or 8(g) above, counsel shall
provide a copy of this Protective Order to such person, who must sign a
Non-Disclosure Agreement in the form attached hereto stating that
the person has read the Protective Order and agrees to be bound by it.
Said counsel shall retain each signed Non-Disclosure Agreement, hold
it in escrow, and produce it to opposing counsel, either prior to such
person being permitted to testify (at deposition or trial) or at the
conclusion of the case, whichever comes first.
10. Where a producing person has designated Discovery Material Highly
Confidential – Attorneys’ Eyes Only, other persons subject to this
Protective Order may only disclose such Discovery Material or
information contained therein to:
(a) the receiving Party’s outside counsel, provided, however, that
any Discovery Material that would unfairly advantage the
receiving Party by revealing the producing Party’s confidential
strategy in ongoing or contemplated restructuring transaction
negotiations shall be marked “Highly Confidential – Negotiation
Materials.” Discovery Material marked Highly Confidential –
Negotiation Materials shall not be disclosed to any individual
attorneys who are actively advising the receiving Party in
ongoing or contemplated restructuring transaction negotiations,
including but not limited to those specified on Exhibit A to this
Protective Order, subject to the exceptions set forth in the
following sentence and in Paragraph 10(e) below. For the
avoidance of doubt, each Party has an ongoing and continuing
obligation to ensure that Highly Confidential – Negotiation
Materials are not disclosed to any individual attorneys who are
actively advising the receiving Party in ongoing or contemplated
restructuring transaction negotiations; provided that this
limitation does not apply to individual attorneys who are not
actively advising the receiving Party in ongoing or contemplated
restructuring transaction negotiations; and provided further
that any Discovery Material disclosed to a receiving Party’s
restructuring counsel as part of diligence in connection with any
potential transaction shall not be designated Highly
Confidential – Negotiation Materials in this action and shall
instead be designated Confidential or Highly Confidential –
Attorneys’ Eyes Only as applicable. Discovery Material marked
Highly Confidential – Negotiation Materials shall be treated as
Highly Confidential – Attorneys’ Eyes Only in all other respects.
The Highly Confidential – Negotiation Materials designation is
intended to prevent disclosure of information that would
prejudice the interests of any Party in connection with ongoing
or contemplated restructuring transaction negotiations and
shall not undermine or otherwise unreasonably restrict any
Party’s litigation counsel from representing such Party.
(b) certain designated in-house counsel of the receiving Party if and
only if the in-house counsel’s responsibilities include overseeing
this action and do not include restructuring negotiations or
competitive decision making; provided that each Party shall
identify which in-house counsel is designated to receive and
review Highly Confidential – Attorneys’ Eyes Only material,
and that, before receiving or reviewing any Highly Confidential
– Attorneys’ Eyes Only material, those designated in-house
counsel execute a Non-Disclosure Agreement in the form
attached hereto;
(c) any mediator or arbitrator engaged by the Parties in this matter
or appointed by the Court, provided such person has first
executed a Non-Disclosure Agreement in the form attached
hereto;
(d) as to any document, its author, addressee, and any other person
indicated on the face of the document as having received a copy;
(e) any witness who, in the good-faith belief of counsel for a Party,
may be called to testify at trial or deposition in this action,
provided that the receiving Party first secures agreement from
the producing Party or a court order; provided further that such
witness has first executed a Non-Disclosure Agreement in the
form attached hereto; and provided further that, for the
avoidance of doubt, this paragraph does not apply if the witness
is already entitled to access the documents designated Highly
Confidential – Attorneys’ Eyes Only or Highly Confidential –
Negotiation Materials under another provision of this Protective
Order;
(f) outside vendors or service providers (such as copy-service
providers and document-management consultants, graphic
production services or other litigation support services) hired by
counsel and assigned to this matter, including computer service
personnel performing duties relating to a computerized
litigation system, provided such person has first executed a Non-
Disclosure Agreement in the form attached hereto.
(g) any person retained by a Party 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 attached hereto;
(h) stenographers engaged to transcribe depositions conducted in
this action; and
(i) this Court, including any appellate court, and the court
reporters and support personnel for the same.
Any Party who objects to any designation of material as Confidential,
Highly Confidential – Attorneys’ Eyes Only, or Highly Confidential –
Negotiation Materials may, at any time prior to the trial of this action,
serve upon counsel for the designating person a written notice stating
with particularity the grounds of the objection. If the Parties cannot
reach agreement promptly, counsel for the receiving Party shall
address the dispute to the Court in accordance with Rule 6 of this
Court’s Individual Rules and Practices in Civil Cases. For the
avoidance of doubt, the designating person or Party shall bear the
burden of establishing the appropriateness of any designation of
Discovery Material.
11. A Party may be requested to produce Discovery Material that is
subject to contractual or other obligations of confidentiality owed to a
third party. Within five business days of receiving the request, the
receiving Party subject to such obligation shall inform the third party
of the request and, further, that the third party may seek a protective
order or other relief from this Court. If neither the third party nor the
receiving Party seeks a protective order or other relief from this Court
within 21 days of that notice, the receiving Party shall produce the
information responsive to the discovery request but may affix the
appropriate confidentiality designation.
12. Recipients of Protected Material under this Protective Order may use
such material solely for the prosecution and defense of this action and
any appeals thereof, and not for any business, commercial, or
competitive purpose, or in (or in connection with) any other litigation
or proceeding. Nothing in this Protective Order, however, will affect or
restrict the rights of any person with respect to its own documents or
information produced in this action. Nor does anything in this
Protective Order limit or restrict the rights of any person to use or
disclose information or material obtained independently from, and not
through or pursuant to, the Federal Rules of Civil Procedure.
13. Nothing herein will prevent any person subject to this Protective
Order from producing any Protected 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, however, that such person receiving such a
request or process shall provide written notice to the producing person
before disclosure and 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 person will have
the right to oppose compliance with the subpoena, other compulsory
process, or other legal notice if the producing person deems it
appropriate to do so.
14. In accordance with Section 10(C) of this Court’s Individual Rules and
Practices in Civil Cases, any party filing documents under seal must
first file with the Court a letter-motion explaining the basis for sealing
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 closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (internal
quotation omitted). There is no presumption that Confidential or
Highly Confidential – Attorneys’ Eyes Only or Highly Confidential –
Negotiation Materials Discovery Material will be filed with the Court
under seal. The Parties will use their best efforts to minimize such
sealing.
15. The Court also retains unfettered discretion whether to afford
confidential treatment to any Discovery Material designated as
Confidential or Highly Confidential – Attorneys’ Eyes Only or Highly
Confidential – Negotiation Materials 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 was previously sealed or
designated Confidential or Highly Confidential – Attorneys’ Eyes Only
or Highly Confidential – Negotiation Materials.
16. In filing Protected Material with this Court, or filing portions of any
pleadings, motions, or other papers that disclose such Protected
Material (“Confidential Court Submission”), the Parties shall publicly
file a redacted copy of the Confidential Court Submission via the
Electronic Case Filing System (“ECF”). The Parties shall
simultaneously file under seal via ECF (with the appropriate level of
restriction) an unredacted copy of the Confidential Court Submission
with the proposed redactions highlighted.
17. Each person who has access to Discovery Material that has been
designated Confidential or Highly Confidential – Attorneys’ Eyes
Only or Highly Confidential – Negotiation Materials shall take
all due precautions to prevent the unauthorized or inadvertent
disclosure of such material.
18. Any Personally Identifying Information (“PII”) (e.g., social security
numbers, financial account numbers, passwords, and information that
may be used for identity theft) exchanged in discovery shall be
maintained by the persons who receive such information and are
bound by this Protective Order in a manner that is secure and
confidential. In the event that the person receiving PII experiences a
data breach, the receiving person shall immediately notify the
producing person of the same and cooperate with the producing person
to address and remedy the breach. Nothing herein shall preclude the
producing person from asserting legal claims or constitute a waiver of
legal rights or defenses in the event of litigation arising out of the
receiving person’s failure to appropriately protect PII from
unauthorized disclosure.
19. If, in connection with this litigation, a party inadvertently discloses
information subject to a claim of attorney-client privilege or attorney
work product protection (“Inadvertently Disclosed Information”), such
disclosure shall not constitute or be deemed a waiver or forfeiture of
any claim of privilege or work product protection with respect to the
Inadvertently Disclosed Information and its subject matter.
20. If a disclosing 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 has been returned or
destroyed.
21. Within five business days of the certification that such
Inadvertently Disclosed Information has been returned or
destroyed, the disclosing party shall produce a privilege log with
respect to the Inadvertently Disclosed Information.
22. 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.
23. The disclosing 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.
24. This Protective Order shall survive the termination of the litigation
and will continue to be binding upon all persons to whom Protected
Material is produced or disclosed. Within 30 days of the final
disposition of this action, all Discovery Material designated
Confidential or Highly Confidential – Attorneys’ Eyes Only or Highly
Confidential – Negotiation Materials, and all copies thereof, shall
promptly be returned to the producing person. Alternatively, upon
permission of the producing person, all Protected Material, and all
copies thereof, shall be destroyed. In either event, by the 30-day
deadline, the recipient must certify the return or destruction of all
Protected Material, and all copies thereof, by submitting a written
certification to the producing Party that affirms that the recipient has
not retained any copies, abstracts, compilations, summaries, or other
forms of reproducing or capturing any of the Protected Material.
Notwithstanding this provision, the attorneys specifically retained by
the Parties for representation in 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 Protected Material. Any such archival copies that
contain or constitute Protected Material remain subject to this Order.
25. All persons subject to this Protective Order acknowledge that
willful violation of the Protective Order could subject them to
punishment for contempt of Court. This Court shall retain
jurisdiction over all persons subject to this Protective Order to the
extent necessary to enforce any obligations arising hereunder, or to
impose sanctions for any contempt thereof.
SO STIPULATED AND AGREED.
Dated: Dated:
SO ORDERED
Dated: April 8, 2026
New York, New York
V Lana VGaggg
JEANNETTE A. VARGAS
United States District Judge
12
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPTIMUM COMMUNICATIONS, INC.;
CSC HOLDINGS, LLC,
Case No. 25-cv-9785
Plaintiffs,
v. NON-DISCLOSURE
AGREEMENT
APOLLO CAPITAL MANAGEMENT, L.P.;
ARES MANAGEMENT LLC; BLACKROCK
FINANCIAL MANAGEMENT, INC.;
GOLDENTREE ASSET MANAGEMENT LP;
J.P. MORGAN INVESTMENT
MANAGEMENT INC.; LOOMIS, SAYLES &
COMPANY, L.P.; OAKTREE CAPITAL
MANAGEMENT, L.P.; PGIM, INC.; Doe
Entities #1-#1000.
Defendants.
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” or “Highly
Confidential – Attorneys’ Eyes Only” or “Highly Confidential – Negotiation
Materials” (together, “Protected Material”). I agree that I will not disclose such
Protected 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:
Exhibit A
• Akin Gump Strauss Hauer & Feld LLP attorneys who are actively advising
Defendants or the Cooperative in restructuring transaction negotiations
• Kirkland & Ellis LLP attorneys who are actively advising Optimum in
restructuring transaction negotiations
• Ropes & Gray LLP attorneys who are actively advising Optimum in
restructuring transaction negotiations
• White & Case LLP attorneys who are actively advising Optimum in
restructuring transaction negotiations