Windsor v. The United States Of America

Filing 25

STIPULATION AND ORDER GOVERNING PROTECTION AND EXCHANGE OF CONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material...This order may be modified by further order of the Court. (Signed by Magistrate Judge James C. Francis on 5/26/11) (cd)

r;:::::=-=.-- , - - - - , , - - - - 'j USDS 5')\, DOCl'>:. ·1 ELE( (,';( DOC~ 10 eiy, 8435 (13SJ) (JCF) EDITH SCIILAI N WINDSOR. STH>ULATION AND (pnOP06FlItj" ORDER GOVERNING PROTECTION AND EXCHANGE OF CONFlDENTIA L INFORMATION Plaintill v. TilE UNITED STATES OF AMERICA. Defendant. U.S.ALL: JAMES FH WHEREAS. a1l the parties 10 this action (collectively the "Parties" amI individually a "Party") request that this Court issue a protective order pursuant to Federal Rule of Civil Procedure 26(c) 10 protect the confidentiality of nonpublic and sensitive personal informlltion that they may need to disclose in connection with discovery in this action: and WHEREAS, the P.u1ies. through counseL agree to the following terms: and WHEREAS. this Court finds good calise exists for issuance of an appropriate ly t:lilored COil fidentialit y order governing the pretrial phase of this action. IT IS HEREBY ORDERED that any person subject (0 this Order ---­ including without limitation the Parties to this action (including their respective corpontte pments. successors, and assigns), their representatives, agents. experts and consultants, all third pm1ies providing discovery in this actioll, and all other interested persons with actLlal or constructive Ilotice of this Order - pain of contl!mpt: will adhere to . , ;.L. II !' i ~~~_8!~ZZ;jJ I DATl..__ UNITED STATES DISTRICT COURT SOLJTHERN D1STIUCT OF NEW YORK i' the following terms, upon J. With respect to "Discovery Material" (i.e., information of any kind produced or disclosed in the course of discovery in this action) that ,1 person has designated as "Confidential" pllrsuant to this Order, no person subject 10 this Order may disclose slich Conlitlential Dbcovery Material to anyone else except as this Order expressly permits. 2. The Party or person producing or disclosing Discovery rVlatcrial CProducing Party") may designate as Conlidential snch material that it reasonably and in good faith believes consists of: (a) any inh1rmation of a personal or intimatl~ nature regarding any individual: or (b) any other category of information this Court subsequent Iy affords conlidential status. 3. With respect to the Confidential portion of any Discovery i\1aterial other than deposition transcripts and exhibits, the Producing Party or its counsel may designate documents as "Confidential" by stamping or otherwise clearly marking as "Confidential" the protected portion in a manner that will not inlerfere with legibility or audibility. 4. A Producing ParlY Of its counsel may designate deposition exhibits or p0l1ions of deposition transcripts as Confidential Discovery Material either by: (a) indicating on the record during the deposition that a question calls for C:onlidential information, in which case the reporter will bind the transcript of the designated te~timony ill a separate volume and mark it as "ConJidential Infofmation Governed by Prolective Order;" Of (b) notifying the reporter and all COUllsl"i of record, in writing. within 30 days ancr the transcript of the deposition has been received, of the specific pages and Jines of the transcript thaI are to be designated "Confidential," in which case all counsel receiving the transcript will be responsible lor marking the copies of the designatcd transcript in their possession or under their control as directed by the Producing Party or that person's counsel. During the period after the deposition has taken place but before the 30 days following the receipt of the deposition transcript has lapsed, all Parties will treat the entire deposition transcript as if it had been designated Confident ial. 5. If' at any time before the trial of this action a Producing Party realizes that it should have designmed as Confidential some portiones} of Discovery Material that it previously prouuced without limitation, the Producing Party may so designate such material by so apprising all prior recipients in writing. Thcrealter, this Court and all persons subject to this Order will treat such designated pOI1ion(s) of the Discovery Material as Confidential. 6, by a Pm1y 0)' Nothing contained in this Order will be construed as: (a) a waiver person of its right to object to an)' 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 Confident ial, other persons subject to this Onkr may disclose such information only to the following persons: (a) the Parties to this action; 3 (b) cOllllsel retained specifically it)r this action, including any paralegal. clerical, or other assistant that slich outsidc counsel employs and assigns to this matter: (c) outside vendors or service provider:> (such as copy- service providers) that counsel hire amJ assign (t!) [0 this matter: allY person u Party retains to serve as an expert witness or otherwise provide specialized advice to counsel in connection \vith this action. provided such person has lir~;( executed a Non-Disclosure Agreement in the form annexed as Exhibit A hereto; (e) witnesses or deponents and their counsel. during the course of and in preparation for depositions or testimony, provided such person has first executed a Non-Disclosure Agreement in the form annexed as Exhibit A hereto; (l) stenographers engnged to transcribe depositions the Parties conduct in this act ion: and (g) this Court, including any appellate coul1, its support personnel, and court rep0l1ers. 8, Before disclosing any Confidentiul Discovery Material to any person retCrred to in subparagraphs 7(d) and 7(e) nbove, counsel must provide u copy of this Order to slIch person. who must sign a Non-Disclosure Agreement in the farm annexed as Exhibit A hereto stating thai he or she has reud this Order and agrees to be bound by its terms. Counsel must retain each signed Non-Disclosure Agreement and 4 produce it to opposing counsel either before such person is permitted to testify (at deposition or lrial) or al the concillsion of the case, whichever comes I1rsl. Ir allY paper which incorporates any Confidential Materinls or 9. reveals tbe contents thereof is filed in this C01ll1. those p0l1ions of the pupers shall bc delivcred to the COHrt enclosed in a scaled envelope bearing the caption of this action. an indication of the nature of the contents. ant! the following legend: CONFIDEN'rIAL: This envelope contains documenls or information designated confidential pursuant to an order entered by the United States District COll!1 for the Southern District or New York in the above-captioned action. This envelope shall not be opened or unsealed without the express direction of a judge of this COUlt. and its contents shall not be displayed or revealed except as the Court may order. This envelope and ils contents shall at all times be maintained separate and apart from the publicly available riles or this case. 10. In tiling Conl1dclltial Discovery~vlaterial with this COllrt, or filing portions of any pleadings, motions. or other papers that disclose such Conlldential Discovery IVlatcrbl ("Confidential Court Submission"), the Parties shall publicly file n rednctccl copy or Ihe 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 COllrt. and the Parties shall serve this Court and opposing counsel with unredacted courtesy copies of the Confidential Court Submission. 11. Any Party who objc~ts 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 Slating with particularity the grollnds ofthl.! objection. If the Parties cannot reach agreelliellt prornptly, counsel lor all affected Parties will address their dispuw to 5 this Court in accordance with the Local Rules of this Court and the Federal Rules of Civil Procedure. 12. Recipients of Confidential Disco\'cry tvlatcrial under this Order may llse sucb material solely for the prosecution and defense of this action and any appcals thereto. 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. Nothing in this Order will prevent any Pat1y from producing. :my 13. Cont1dential Discovery ivlaterial 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 rensonably possible, and if pcrmilled by the time allowed under the request, HI least 10 days before any disclosure. Upon receiving such notice, the Producing Party will bear the burden to oppose compliance with the subpoena. other compulsory process, or other legal notice if the Producing Party deems it appropriate to do so. 14. Confidential Each person who has access to Discovery Material designated as pursll~mt to this Order must take all due precantions to prevent the unaut horized or inadvertent disdosure of such materiul. 15. Within 60 days of the final disposition of this action -- including all appeals --- all recipients of Conlidential Discovery Material must either return it ­ including all copics thereof - \0 the Producing Party. or, upon permission of the Producing Party, destroy such l11aterial- including all copies thereof. In either even!, by the 60-day deadline, the recipient must certify its n::turn or destruction by submilling a 6 IS'. written certification to the Producing Party that afl1rms that it has not ret~lined allY copies, abstral:ts, compilations. summaries, or other forms of reproducing or capturing any of (he ConJickntial Discovery .Material. Notwithstanding this provision, the attorneys that the Parties have specifically retained for this action rnay retain an archival cop)' of all pleadings. motion papers, transcripts, expert reports, legal memoranda. correspondenl:e. or attorney work product. even if such materials contain Confidential Discovery Material. Any ~uch archival copies that contain or constitute Confidential Discovery Material remain subject to this Order. 16. 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. 17. This COUJ1 Order to the extent necessary to will retain jurisdiction over all persons subject to this enforce any obligations arising hereunder or to impose sanctions l'or any contempt thereof. ~ ~kz ~ h /WoOifo! ~.~ ~~ ~ ~ 'tV Co~'t. ,Z. 7 SO STIPULATED AND AGREED. Respectfully Submitted. Dated: May~~2011 PAUL, WEISS, RIFKIND. WHARTON & GARRISON LLP By: £~ fL. f(~ Roberta A. Kaplan. Esq. Andrew J. Ehrlich. Esq. 1285 Avenue of the Americas New York, NY 100]9 - and- James D. Esseks, Esq. Rose A. Sax.e, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004-2400 - and­ Alex.is Kalteron. Esq. Arthur Eisenberg. Esq. NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, NY 10004 Counsel for Pl(lillfiff Dated: Ma yd.2011 UNITED STATES DEPARTMENT OF JUSTICE \ By: an Lin. Esq. oMassachusetts Ave.• N.W.. 7th FI. Washington, DC 20530 Counsel for Defendant 8 Dated: ~ay:z.Lt, 2011 BANCROPI' pu.c "By: ~6~ Paw D. Clement, Esq. . . H. Christopher .B artolomUcc~ Esq. . 1919 M Street, NW Suite 470 . Washington, DC.20036 Counsellor The Bipartisan r,egcd A,dViiory' G~¥p ofthe U.S. Horue ofRepresenlatlves . Ddid, 't'~.;OWYOU . . . '. . 2Qll .. '.: .:' .. - .- : . . . . • SO ORDERED:. ~ KABLE lAMES ~CIS States Magistrate' Ju(lge 9 ..". "