Opinion

The Honorable Paul A. Engelmayer May 26, 2026

United States District Judge

Thurgood Marshall United States Courthouse

40 Foley Square

New York, NY 10007

Re: United States v. The New York and Presbyterian Hospital, No. 26 Civ. 02480 (S.D.N.Y.)

Dear Judge Engelmayer: .

Plaintiff United States of America respectfully moves for entry of the attached proposed

protective order (“PPO”) (Exhibit A). There is good cause for the PPO’s entry. Discovery in this

antitrust action will include a large volume of confidential business and personal information, the

disclosure of which without protection would be harmful to parties and non-parties. The PPO

limits use of such information and limits disclosure to outside counsel only, preventing

Defendant’s employees from accessing sensitive information, including from non-parties with

which Defendant transacts.

The parties agree on many terms, but after telephonic and written meet-and-confers,' the parties

have reached impasse on five items, which are discussed below. Except where Plaintiff has

incorporated or adapted Defendant’s proposed language to address Defendant’s concerns,”

Plaintiffs’ proposed PPO is consistent with the protective orders entered in this District in

antitrust matters filed by the United States, United States of America, et al. v. Live Nation

Entertainment, Inc. and Ticketmaster L.L.C., (ECF No. 213) (Exhibit B) and United States of

America v. Visa Inc., No. 24 Civ. 07214, (ECF No. 42) (Exhibit C).

1. Third-Party Notice. Because Plaintiff must produce to Defendant third-party discovery

collected during the Plaintiff’s pre-complaint investigation, Plaintiff stands in the shoes of third

parties. Plaintiff has informed third parties that their materials will likely be produced in

discovery after the entry of a protective order. PPO Paragraph 24 requires Plaintiff to provide

notice of the protective order to third parties that produced materials during the investigation so

that they have an opportunity to seek additional protection before Plaintiff produces their

confidential information to Defendant. To not unduly delay production of investigative materials

to Defendant, a third party seeking greater protection than the terms of the entered protective

provide must file a motion within 10 business days of being provided the order. Similar notice

requirements to third parties are found in the Live Nation 21.c) and Visa ({ 21) protective

orders, as well as in nearly all Antitrust Division litigations with pre-complaint discovery. This

commonly used provision creates an orderly mechanism to enable third parties a limited period

to seek additional protection from the Court while ensuring that Plaintiff can promptly produce

pre-complaint third-party discovery to Defendant.

On April 7, May 4, and May 21, 2026, parties met and conferred via video conference. Parties exchanged draft

orders and emailed regarding the proposed language on April 10, April 24, May 13, May 14, May 15, and May 22,

2026.

2 See, e.g., TF 40, 42 (permitting use and production of protected materials in related actions at the request of

Defendant); J 47 (parties’ agreed upon language addressing Defendant’s desire to use generative AI); J 52 (adapting

Defendant’s proposed language regarding public proceedings); and { 62 (parties’ agreed upon language addressing

Defendant’s concerns regarding use of technology-assisted review in identifying privileged materials).

The Honorable Paul A. Engelmayer

Page 2

Defendant objects to this commonly used provision. Defendant has asserted that the provision

creates different standards for third parties and parties. It does not. Paragraph 24 affords third

parties an opportunity to be heard by the Court before they suffer prejudice from inadequate

protections, that is, before their documents are produced. Parties already have this pre-

production opportunity to secure adequate protection through this motion practice. Paragraph

25 makes clear that there are no separate standards. Any person may seek additional protection

or modification of the order via motion.

2. United States’s Disclosure and Use of Confidential Information. The Department of Justice is

tasked with enforcing federal law and investigating potentially unlawful conduct. Protective

orders sought by the Division or other Department of Justice components routinely include a

provision making clear that nothing in the order prevents the United States from using or

disclosing information subject to the order (i) to the extent permitted or required by law, court

order, or regulation, (ii) for law-enforcement purposes, or (iii) to secure compliance with a final

judgment in this action. Such a provision is found in both Visa (37) and Live Nation ({ 18). At

the meet-and-confer, counsel for Defendant objected to this provision in PPO Paragraph 45.c. on

the grounds that Defendant is not permitted similar disclosure rights. But unlike Defendant,

Plaintiff has a duty to enforce the law. And Congress has provided the Department with authority

to obtain documents and information in civil antitrust investigations, specifically allowing the

Department to keep copies of documents that were obtained. 15 U.S.C. § 1313(e).

3. Disclosure in Public Proceedings.’ Plaintiff has incorporated Paragraph 52 at the request of

Defendant, even though Plaintiff does not normally stipulate to such a provision and such

language is not found in the Visa and Live Nation protective orders. Paragraph 52 requires five

business days’ notice to a protected person if a party reasonably expects to disclose that protected

person’s confidential information at a public proceeding before the Court. Plaintiff takes the

position that such notice requirement should only apply to the confidential information of a non-

party protected person. This is because a non-party may not be present at such a proceeding. The

advance notice enables the non-party to seek protection from public disclosure by filing a motion

ahead of the proceeding. The PPO therefore limits the notice requirement in Paragraph 52 to

non-parties only. This advanced notice requirement is unnecessary for parties. Plaintiff and

Defendant will both be present at any proceeding before the Court and able to address

confidentiality issues in real time with your Honor or Magistrate Judge Wang. Further, applying

the notice requirement to party confidential information prejudices Plaintiff as relevant

confidential information is likely to come from Defendant and Defendant may waive its own

confidentiality designation at any time to disclose confidential information to its own advantage.

Plaintiff may then be unable to respond to the Court with relevant information if it has not

provided sufficient notice to Defendant or is at least disadvantaged by Defendant’s formulation.

To resolve Defendant’s stated concern that it will be required to address confidentiality issues at

the hearing, Plaintiff has added a provision requiring a party using another party’s confidential

information to ask the Court to receive the information under seal or similarly protected form.

4. Persons Bound by Order. Plaintiff respectfully submits that this order should broadly bind the

parties and their affiliated representatives and agents to properly protect confidential information.

3 Paragraph 53 of the PPO expressly provides that use of Confidential Information in trial and post-trial proceedings

and filings will be governed by a later order.

The Honorable Paul A. Engelmayer

Page 3

PPO Paragraph 21 makes clear the scope of persons and entities that the Order binds. This

provision is nearly identical to Visa { 18 and Live Nation at page 1, and has been included in

other recent protective orders in this District, see ESPN Enterprises, Inc. v. DISH Network

L.L.C., No. 1:25-CV-07169 (AS), 2025 WL 2602160, at *1 (S.D.N.Y. Sept. 9, 2025). Defendant

objects in part to the language. Defendant wants to limit the interested persons bound by the

Order to anyone that both receives confidential information and receives actual notice of the

Order. These are needless limits on the scope of persons bound by the Order. Defendant’s

formulation excludes both any person that receives constructive notice of the order and anyone

who does not receive confidential information. Receipt of confidential information is an

unwarranted limitation on the person that ought to be bound by the order because it excludes

persons that have access to confidential information, such as legal IT personnel, persons that are

in a position to disclose confidential information in ways that violate the order, even though such

persons do not necessarily receive confidential information. Plaintiff has added language to

Paragraph 21 expressly binding any person with access to confidential information.

A person that receives constructive notice of the order should be bound. Extending the order’s

obligations to persons with constructive notice is routine practice in this District. Extending the

order’s prohibitions to any person with constructive notice provides additional protection against

inappropriate use and disclosure of confidential information. Defendant has identified no

prejudice from binding persons with constructive notice.

5. Non-designation. PPO Paragraph 28 requires the designating party to have a good-faith belief

that material is confidential when designating it as such.> PPO Paragraph 28 makes clear that any

information not designated as Confidential Information will not be treated as Confidential

Information. Defendant objects to the inclusion of this sentence. To attempt to address

Defendant’s concern, Plaintiff added a sentence to Paragraph 28 expressly indicating that any

Person may address the lack of a designation by using the procedure set forth in Paragraph 36,

which governs inadvertent designation failures.

We thank the Court for its consideration of this submission.

Respectfully submitted,

By: — s/ Paul Torzilli

PAUL J. TORZILLI (202) 476-0547

JESSICA HOLLIS (202) 307-1347

Trial Attorneys

cc: All counsel of record (via ECF) Counsel for Plaintiff United States

|ny person subject to this Order—including without limitation the parties to this action, their representatives,

agents, experts, consultants, all third parties providing discovery in this action, and all other interested persons with

actual or constructive notice of this Order—shall adhere to the following terms, upon pain of contempt.”

5 The good-faith standard is common for this District’s “blanket” protective orders, and this Court has routinely

entered blanket protective orders expressly requiring designations be made in good faith. See, e.g., Visa (4 25). As

Magistrate Judge Peck explained: “a ‘blanket’ protective order [] permits the parties to protect documents that they

in good faith believe contain trade secrets or other confidential commercial information.” Bayer AG and Miles, Inc.

vy. Barr Laboratories, Inc., 162 F.R.D. 456, 465 (S.D.N.Y. 1995) (emphasis added).

Per the Court's Individual Rule 2(E) governing discovery disputes,

New York Presybyterian Hospital's response is due Friday, May

29, 2026. The Court does not invite replies.

SO ORDERED.

ful A Crypbreg/

PAUL A.ENGELMAYER

United States District Judge

Dated: May 26, 2026

New York, New York