United States of America, ex rel. John Rubar v. The Hayner Hoyt Corporation, et al
Filing
114
PROTECTIVE ORDER: setting for the terms and conditions for the exchange of information, documents and materials in this action. Signed by Magistrate Judge Christian F. Hummel on 11/5/2018. (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, ex rel.
JOHN RUBAR,
Plaintiff,
Civil Action No.
vs.
THE HAYNER HOYT CORPORATION,
JEREMY
THURSTON,
GARY
THURSTON, LEMOYNE INTERIORS,
DOYNER, INC., RALPH BENNETT,
and 229 CONSTRUCTORS, LLC,
5:14-cv-00830-GLS-CFH
Defendants.
PROTECTIVE ORDER
IT IS HEREBY ORDERED by the Court:
1.
This
Protective Order shall govern the handling of all
documents (whether in writing, on magnetic tape or otherwise), testimony and other
information, including all copies, excerpts, extracts and summaries thereof (collectively,
“Material”) produced, given or filed during discovery and other proceedings in the abovecaptioned action, and designated “Confidential” or “Attorney’s Eyes Only” as set forth
below.
2.
Any party or other person agreeing to be bound hereby (including non-
parties) producing or disclosing Material may designate as “Confidential” or “Attorney’s
Eyes Only” any portions of any Material, subject to paragraphs 4 and 5 below.
a.)
“Confidential” information is information concerning a person’s business
operations, processes, and technical and development information within the scope of
Rule 26(c)(1)(G), the disclosure of which is likely to harm that person’s competitive
position, or the disclosure of which would contravene an obligation of confidentiality to a
third person or to a Court.
b)
“Highly Confidential”, or its equivalent, “Attorney’s Eyes Only”
information is information within the scope of Rule 26(c)(1)(G) that represents current or
future business or technical trade secrets and plans that are more sensitive or strategic
than Confidential information, the disclosure of which is likely to significantly harm that
person’s competitive position, or the disclosure of which would contravene an obligation
of confidentiality to a third person or to a Court.
c)
Information is not Confidential or Highly Confidential if it is disclosed in
a printed publication, is known to the public, was known to the recipient without
obligation of confidentiality before the producer disclosed it, or is or becomes known to
the recipient by means not constituting a breach of this Order. Information is likewise not
Confidential or Highly Confidential if a person lawfully obtained it independently of this
litigation.
3.
A person’s designation of information as Confidential or Attorney’s Eyes
Only means that the person believes in good faith, upon reasonable inquiry, that the
information qualifies as such.
The parties’ counsel and any other person obtaining
information from any Material designated “Confidential” or “Attorney’s Eyes Only” shall
maintain such information in accordance with this
Protective Order, shall
not disclose such Material or information to any person, entity, organization or agency
except as expressly provided below, and shall use such information solely for the purpose
of preparing for and conducting the above-captioned action.
Material designated
“Confidential” or “Attorney’s Eyes Only”, or the contents thereof, shall be not used for
any other purpose or disclosed to any persons other than those authorized herein.
4.
A party may designate as “Confidential” any Material that contains or
constitutes business operations, processes, and technical and development information
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within the scope of Rule 26(c)(1)(G), the disclosure of which is likely to harm that party
or person’s competitive position, or the disclosure of which would contravene an
obligation of confidentiality to a third person or to a Court.
Material designated
“Confidential” shall not, without the consent of the person producing it or further Order
of the Court, be disclosed to anyone other than:
(a)
Attorneys of Record and in-house counsel for a party in the above-
captioned action;
(b)
Persons regularly members of, employed by or associated with the law
firms retained by a party, or lawyers or paralegals engaged in whole or in part to assist the
law firms of record, when the assistance of such persons is required by said attorneys in
the preparation for or trial of the above-captioned action;
(c)
Expert witnesses and consultants retained in connection with the above-
captioned action, to the extent such disclosure is necessary for the preparation for trial or
trial of the action;
(d)
Deponents noticed or subpoenaed by the parties, so long as that deponent
(i) is an employee, partner, director, officer or agent of the producing party, or (ii) is an
expert retained for the purposes of this litigation;
(e)
Parties or partners, directors, officers and regular employees of a party to
the extent such disclosure is necessary for preparation for a deposition or trial of the
above-captioned action;
(f)
The author or recipient of that document to the extent such authorship or
receipt can be ascertained from the face of the document; and
(g)
The Court (including court reporters, stenographic reporters and court
personnel).
5.
A party may designate as “Attorney’s Eyes Only” any Material within the
scope of Rule 26(c)(1)(G) that represents current or future business or technical trade
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secrets and plans that are more sensitive or strategic than Confidential information, the
disclosure of which is likely to significantly harm that party or person’s competitive
position, or the disclosure of which would contravene an obligation of confidentiality to a
third person or to a Court. Material designated “Attorney’s Eyes Only” shall not, without
the consent of the person producing it or further Order of the Court, be disclosed to
anyone other than:
(a)
Attorneys of Record and in-house counsel for a party in the above-
captioned action;
(b)
Persons regularly members of, employed by or associated with the law
firms retained by a party, or lawyers or paralegals engaged in whole or in part to assist the
law firms of record, when the assistance of such persons is required by said attorneys in
the preparation for or trial of the above-captioned action;
(c)
Expert witnesses and consultants retained in connection with the above-
captioned action, to the extent such disclosure is necessary for the preparation for trial or
trial of the action;
(d)
Deponents noticed or subpoenaed by the parties, so long as that deponent
(i) is an employee, partner, director, officer or agent of the producing party, or (ii) is an
expert retained for the purposes of this litigation;
(e)
The author or recipient of that document to the extent such authorship or
receipt can be ascertained from the face of the document; and
(f)
The Court (including court reporters, stenographic reporters and court
personnel).
6.
Material shall be designated as follows:
(a)
In the case of documents, designation shall be made prior to production by
stamping or writing the word “Confidential” or “Attorney’s Eyes Only” on each page of
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any such document or, where appropriate, on the first page of an identifiable group of
documents.
(b)
Documents may be produced for inspection prior to their designation as
“Confidential” or “Attorney’s Eyes Only” but shall be designated as “Confidential” or
“Attorney’s Eyes Only” prior to the transmission of a physical copy of the document to
the party requesting the document.
(c)
In the case of interrogatory answers, designation shall be made by
stamping or writing the word “Confidential” or “Attorney’s Eyes Only” on the relevant
portion of any such answer.
(d)
In the case of depositions, designation of the portion of the transcript
(including exhibits) which contains “Confidential” or “Attorney’s Eyes Only” Material
shall be made by a statement to such effect on the record during the course of the
deposition or may be done within ten days of receipt of the transcript of the deposition by
counsel for the party claiming confidentiality. If the designation is made during the
course of a deposition, the reporter attending such deposition shall thereafter bind the
transcript thereof in separate portions containing the non-confidential Material and
“Confidential” or “Attorney’s Eyes Only” Material and the reporter shall write or stamp
the word “Confidential” or “Attorney’s Eyes Only” on the cover of the relevant portions
of the transcript. If the designation is made following review of the transcript, the party
so designating shall write or stamp the word “Confidential” or “Attorney’s Eyes Only” on
each page the party wishes to so designate. The parties may modify this procedure for
any particular deposition through agreement on the record at such deposition, without
further court order.
7.
All documents, testimony and information produced that is not stamped
“Confidential” or “Attorney’s Eyes Only” shall be treated as if designated “Attorney’s
Eyes Only” for a period of 20 days after such production. Inadvertent failure to designate
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such material at the time of production may be remedied by supplemental written notice.
All documents, testimony, or information so designated shall be treated as if they had
been initially designated as “Attorney’s Eyes Only”.
8.
If any party objects to the designation of any Material as “Confidential” or
“Attorney’s Eyes Only,” the party shall so state the objection by letter or statement on the
record (“notice”) to counsel for the person making the designation. Any such written
notice shall identify the Material to which the objection is directed. Counsel shall confer
in good faith in an attempt to resolve any disputes concerning such designation. If the
status of the Challenged Materials cannot be resolved within ten (10) business days after
the time the notice is furnished, the party claiming confidentiality may file an appropriate
motion requesting that the Court rule that the Challenged Materials should be subject to
the protection invoked. Notwithstanding the foregoing, during any non-party deposition,
the parties may attempt to obtain an immediate judicial ruling by telephone conference
call. The Challenged Materials will be treated as “Attorney’s Eyes Only” pending the
Court's ruling on such motion.
9.
The terms of this
Protective Order shall survive any
settlement, discontinuance, dismissal, judgment or other disposition of this action.
Within thirty (30) days after final conclusion of all aspects of this litigation, all
documents containing Confidential or “Attorney’s Eyes Only” information, and all copies
of same, shall be destroyed or returned to the party or person that produced such
information. Counsel, however, shall be permitted to keep intact and maintain their work
product as part of their private files.
10.
Nothing herein shall prevent any party, on notice to the other party, from
applying to the Court for a modification of this Order nor do the parties waive any right to
seek relief from the Court from any provision of this
any time, by order or by stipulation.
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Protective Order at
11.
If a party in possession of Materials designated “Confidential” or
“Attorney’s Eyes Only” receives a subpoena from a non-party to this
Protective Order seeking production or other disclosure of any “Confidential” or
“Attorney’s Eyes Only” Material, he or she shall promptly give written and telephonic
notice to counsel for the party who designated the Material “Confidential” or “Attorney’s
Eyes Only” stating the “Confidential” or “Attorney’s Eyes Only” Material sought and
enclosing a copy of the subpoena. Where possible, at least ten (10) days' notice before
production or other disclosure thereof should be given. In no event shall production or
disclosure be made before notice is given.
12.
In the event that any party determines that the prosecution or defense of
this Action requires that “Confidential” or “Attorney’s Eyes Only” Material be disclosed
to persons not otherwise authorized herein, such as non-party deponents, that party’s
counsel shall provide the other party’s counsel written notice by facsimile, electronic
mail, hand delivery or U.S. mail, of the intended disclosure (which notice shall specify
with particularity the “Confidential” or “Attorney’s Eyes Only” Material to be disclosed
and the identity of the otherwise unauthorized person). This written notice shall be
received not less than five (5) business days prior to the intended disclosure, or such
shorter period as is mutually agreeable to the parties in any particular case. If, within five
(5) business days after receipt of such notice, a party objects in writing to such disclosure,
the “Confidential” or “Attorney’s Eyes Only” Material shall not be disclosed unless the
objecting party fails to move for a protective order barring such disclosure as set forth
herein, or the Court denies the objecting party’s motion for a protective order. In order to
preserve its objection, the objecting party must move for a protective order barring the
proposed disclosure within five (5) business days of receipt of the notice of intended
disclosure, and shall have the burden of proof on that motion. Failure to move for a
protective order shall be deemed a waiver of any objection to the disclosure identified in
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the above-described written notice.
A party shall be deemed to have moved for a
protective order within the five (5) business day period set forth herein if that party has
requested a conference with the Court pursuant to Rule 7.1(d) of the Local Civil Rules for
the Northern District of New York.
Prior to such disclosure of “Confidential” or
“Attorney’s Eyes Only” Information to the persons described in the first sentence of this
paragraph 12, that person shall execute a Confidentiality Agreement, in the form annexed
hereto as Exhibit A, stating that he or she has read this
Protective Order
and agrees to be bound by its provisions.
13.
Nothing in this
Protective Order shall prevent any party
from disclosing its own information which it has designated “Confidential” or
“Attorney’s Eyes Only” as it deems appropriate and any such disclosure shall not be
deemed a waiver of any other parties’ obligations under this
Protective
Order, except as provided by law. This paragraph shall not be construed to extinguish or
modify any prior stipulation or order.
14.
In the event additional parties are added to this litigation, each new party’s
counsel shall sign a duplicate original of this Order, send it to all other counsel for the
parties and file the original with the Court.
Only upon entry of that amended
Confidentiality Order on the record shall the additional parties or their counsel be
provided access to “Confidential” or “Attorney’s Eyes Only” Information.
SO ORDERED: November 5, 2018
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