Licci v. American Express Bank Ltd.

Filing 189

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 12/13/2022) (vfr)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
12/13/2022
CHAIM KAPLAN, et al.,
Civil Action No. 08-cv-7253 (GBD)(KHP)
Plaintiffs,
against
LEBANESE CANADIAN BANK, SAL,
Defendant.
ESTER LELCHOOK, et al.,
Plaintiffs,

Civil Action No. 18-cv-12401
(GBD)(KHP)

against
LEBANESE CANADIAN BANK, SAL, et al.
Defendants.

WHEREAS, the parties to the above-captioned actions (jointly hereinafter: “Actions”),
having agreed to the following terms of confidentiality, and the Court having found that good
cause exists for the issuance of an appropriately tailored confidentiality order pursuant to Rule
26(c) of the Federal Rules of Civil Procedure, it is hereby
ORDERED that the following restrictions and procedures shall apply to the information
and documents disclosed or produced by the parties in connection with the pre-summary judgment
and pre-trial phases of these Actions:
1.

Counsel for any party may designate any document or information, in whole or in
part, as confidential if counsel determines, in good faith, that such designation is
necessary to protect the interests of the client in information that is proprietary, a
trade secret or otherwise sensitive non-public information. Information and

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documents designated by a party as confidential will be stamped or otherwise
labeled as “Confidential.”
2.

Deposition transcripts and exhibits thereto shall presumptively be treated as
confidential and subject to the terms of this Protective Order during the deposition
and until thirty (30) days after the completion of the transcript (or, in respect to any
errata sheet, within 30 days after the filing of the errata sheet), unless otherwise
specified in writing or on the record of the deposition by the Designating Party. At
or before the end of that thirty (30) day period, relevant portions of the deposition
transcript and of any exhibits may be designated for future purposes as
“Confidential” by any party. Notice of such designation shall be made in writing to
the court reporter, with copies to counsel for the parties, specifying the portion(s)
of the transcript and exhibits that constitute or contain confidential information and
are to be marked accordingly. Deposition transcripts containing testimony or
exhibits designated as “Confidential” shall be marked by the court reporter with the
legend “THIS TRANSCRIPT CONTAINS CONFIDENTIAL INFORMATION”
and the portions thereof marked as “Confidential” shall be treated in accordance
with the provisions of this Protective Order.

3.

The Confidential portions of documents and information disclosed in these Actions
will be held and used by the person receiving them solely for use in connection with
these Actions and any third-party discovery proceedings, appeals or enforcement
proceedings directly related to these Actions.

4.

Any party to these Actions may challenge, at any time, a designation of
confidentiality made pursuant to this Protective Order; such challenge may be to
the validity of the designation when originally made, and/or to the continued
validity of such designation in light of a purported change in circumstances
(including, without limitation, when the challenging party asserts that the
documents or information have become public, or have become “judicial
documents” subject to public access). In the event of such a challenge, counsel shall
make a good faith effort to resolve the dispute, and in the absence of a resolution,

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either party may seek resolution by the Court at any time. The burden rests on the
designating party to demonstrate that such designation, or continued designation, is
proper. Material designated as “Confidential” shall remain subject to the
protections of this Order unless and until the Court rules or the designating party
agrees otherwise. Nothing in this Protective Order constitutes an admission by any
party that documents or information marked as “Confidential” in these Actions is
relevant or admissible. Each party reserves the right to object to the use or
admissibility of the Confidential Information.
5.

Documents or portions thereof or information designated as “Confidential” shall
not be disclosed to any person, except:
a.

The requesting party1 and counsel, including in-house counsel;

b.

Employees of such counsel assigned to and necessary to assist in the
litigation;

c.

Consultants or experts assisting in the prosecution or defense of
these Actions, and their staff, to the extent deemed necessary by
counsel;

d.

Professional vendors retained by a party or its counsel to furnish
technical services in connection with the litigation;

e.

The Court (including a mediator, or other person having access to
any Confidential documents or information by virtue of his or her
position with the Court);

1

In the case of Defendant LCB, LCB’s officers, directors, liquidators, personnel, and former personnel may
receive material designated as “CONFIDENTIAL” as is reasonably necessary for this litigation and after
being advised of their obligations hereunder.
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f.

An officer before whom a deposition is taken, including
stenographic reporters, videographers, and any necessary secretarial,
clerical, or other personnel of such officer;

g.

Trial and deposition witnesses;

h.

As to any document, its author, its addressee, and any other person
indicated on the face of the document as having received a copy; and

i.

Any other person specifically identified and agreed to in writing by
the parties.

6.

Prior to disclosing or displaying material designated as “Confidential” to any
person other than those outlined in categories (a), (b), (e) and (f) of paragraph 5
hereof, counsel must:
a.

Inform the person of the confidential nature of the material;

b.

Inform the person that this Court has enjoined the use of the information or
documents by him/her for any purpose other than this litigation and has
enjoined the disclosure of the information or documents to any other person;
and

c.

Require each such person to sign an agreement to be bound by this Order in
the form attached hereto. To the extent a deposition or trial witness is not
under a party’s control and declines to sign the agreement or to be bound by
this Order, the parties will seek direction from the Court prior to disclosing
or displaying material designated as “Confidential” to such witness.

Trial and deposition witnesses are only authorized to receive material designated
as “Confidential” if the material is to be used in good faith preparation for, during
the course of, or in review of deposition or hearing or trial testimony, and for no
other purpose.

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7.

The disclosure of a document or information without designating it as
“Confidential” shall not constitute a waiver of the right to so designate such
document or information (provided that such designation is proper under the terms
of this Protective Order). If so designated, the document or information shall
thenceforth be treated as Confidential subject to all the terms of this Protective
Order. To the extent such material may have been disclosed to anyone not
authorized to receive it, the receiving party shall, upon the designating party’s
request, promptly (i) identify to the designating party any persons to whom such
disclosures were made, (ii) cooperate in good faith with any efforts by the
designating party to retrieve the material; and (iii) take all reasonable steps to avoid
any further disclosure of the Confidential material.

8.

If a party that has received “Confidential” material learns that, inadvertently or
otherwise, it has disclosed such material to any person or in any circumstance not
authorized under this Protective Order, that party must promptly, after discovery of
the disclosure (a) notify the producing party in writing of the unauthorized
disclosure(s) and the identity of such person(s) to whom the material was disclosed,
(b) take reasonable efforts to retrieve from the person or persons to whom
unauthorized disclosures were made (the “Unauthorized Recipient(s)”), or to have
the Unauthorized Recipient(s) destroy, all copies of the material, (c) inform the
Unauthorized Recipient(s) of all the terms of this Protective Order, and (d) request
that the Unauthorized Recipient(s) execute the agreement to be bound by this Order
in the form attached hereto.

9.

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 receiving party in
a manner that is secure and confidential and shared only with authorized individuals
in a secure manner. The parties shall meet and confer regarding the security
protocols the receiving party shall use in connection with the storage and transfer
of information designated as Confidential by the producing party in order to
safeguard such information. In the event the party who received PII experiences a

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data breach, it shall immediately notify the producing party of same and cooperate
with the producing party to address and remedy the breach.
10.

(a)

Pursuant to Federal Rule of Evidence 502, the production of privileged or

work-product protected documents or communications, electronically stored
information

(“ESI”)

or information,

whether inadvertent

or otherwise

unintentional, shall not constitute a waiver of the privilege or protection from
discovery in this case or in any other federal or state proceeding. This Order shall
be interpreted to provide the maximum protection allowed by Federal Rule of
Evidence 502(d). Nothing contained herein is intended to or shall serve to limit a
party’s right to conduct a review of documents, ESI or information (including
metadata) for relevance, responsiveness and/or segregation of privileged and/or
protected information before production.
(b)

In the event a producing party discovers it has disclosed privileged or work-

product protected material, the producing party may provide written notice to all
counsel of record advising of the disclosure and requesting return or destruction of
the material. Upon receiving such written notice, the receiving party shall,
consistent with Federal Rule of Civil Procedure 26(b)(5)(B) promptly return,
sequester, or destroy all copies of the document(s) as required below.
(c)

Upon receiving notice from a producing party that it is requesting the return

or destruction of privileged or work-product protected material, the receiving party
shall either (a) promptly return and/or destroy its copies of the material, make a
good faith effort to destroy any notes that reproduce, copy, or otherwise disclose
the substance of the material, and notify the producing party’s counsel of record
when it has done so; or (b) sequester all copies of the material in a manner that will
prevent further disclosure or dissemination of its contents pending further order of
the Court.
(d)

Within five (5) business days of receiving notice from a producing party or

its counsel requesting the return or destruction of privileged or work-product
protected material, the receiving party shall notify the producing party’s counsel of

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record in writing whether the receiving party intends to challenge the designation
of the material as privileged or work-product protected. If the receiving party
intends to challenge the designation, the material shall remain sequestered pending
Court resolution of the challenge, and the receiving party and its counsel shall view
and use the material at issue only to the extent necessary to challenge the privilege
claim. The material that the receiving party intends to challenge shall only be
submitted to the Court under seal for an in camera review.
(e)

If the receiving party does not intend to challenge the designation of the

material as privileged or work-product protected, the receiving party and its counsel
shall, within ten (10) business days of receiving such notice of production of
privileged material, destroy or return all its copies of material identified by the
producing party in such notice and expunge information or material derived from
the produced privileged material from any other documents the receiving party
possesses. To the extent the receiving party provided any disclosed privileged
material to any other person or non-party, the receiving party shall, upon the
producing party’s request, promptly (i) identify to the producing party any persons
to whom such disclosures were made, (ii) cooperate in good faith with any efforts
by the producing party to retrieve the privileged material; and (iii) take all
reasonable steps to avoid any further disclosure of the privileged material.
(f)

The parties shall undertake reasonable efforts to resolve the issue of whether

material is privileged without intervention by the Court. To the extent the parties
cannot resolve the issue, a party may seek relief from the Court. No party, however,
may assert as a ground for compelling production the fact or circumstance that the
privileged material had already been produced until the Court determines the
material is not in fact privileged. Nothing herein shall prevent the receiving party
from asserting that the conditions set forth in Rule 502(b) are not met.
11.

If a party that has received material designated as “Confidential” wishes to file
anything with the Court in these Actions (or with any courts hearing third-party
discovery disputes, appeals or enforcement proceedings directly related to these

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Actions, as set forth in paragraph 3 above) that incorporates that material or would
reveal the contents of that material, that party shall request that the court maintain
such material under seal and shall follow the court’s procedures for doing so.
12.

This Protective Order has no effect upon, and shall not apply to, a producing party’s
use of its own discovery material for any purpose.

13.

At the conclusion of litigation (including any appeals and enforcement
proceedings), materials designated as “Confidential” shall be promptly (and in no
event later than 30 days after entry of final judgment no longer subject to further
appeal) returned to the producing party or certified as destroyed, except that the
parties’ counsel shall be permitted to retain their working files on the condition that
those files will remain protected. For the avoidance of doubt, Expert Witnesses,
Professional Vendors, and other third parties who have received material
designated as “Confidential” shall also be required to return or destroy such
material pursuant to the terms of this paragraph.

14.

Nothing herein shall preclude the parties from disclosing material designated to be
Confidential if otherwise required by law or pursuant to a valid subpoena. If a party
that has received material designated as “Confidential” receives a subpoena or other
document production request from a non-party to this Protective Order seeking
production or other disclosure of that material, the receiving party shall notify
counsel for the designating party in writing promptly and in no event more than
five business days after receiving the subpoena or document production request.
Counsel for the receiving party shall inform the person seeking the Confidential
materials that such material is subject to this Protective Order, and shall work in
good faith to facilitate the intervention of the designating party in the matter to
which the subpoena or document production request relates for purposes of
asserting objections to the subpoena or document production request. To the extent
the designating party is determined to lack standing to assert such objections, the
designating party may provide the text of such objections to the receiving party,
which shall act in good faith to timely assert such objections. Unless and until such

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objections are overruled by the Court, or the Court otherwise orders production of
the material, no receiving party may produce or divulge the contents of the material,
except with the express written consent of the designating party.

Under no

circumstances will the receiving party be required to litigate a dispute relating to
any such subpoena or document production request in the court that issued the nonparty request beyond the steps set forth above.
15.

This Protective Order may be modified by the Court at any time for good cause
shown following notice to all parties and an opportunity for them to be heard.

SO STIPULATED AND AGREED.

THE BERKMAN LAW OFFICE, LLC

SQUIRE PATTON BOGGS (US) LLP

By: /s/ Robert J. Tolchin (with consent)
Robert J. Tolchin
829 East 15th Street
Brooklyn, NY 11230

By: /s/ Gassan A. Baloul
Gassan A. Baloul
2550 M Street, NW
Washington, DC 20037

Counsel for Plaintiffs

Counsel for Defendants Lebanese Canadian
Bank SAL and Mohamed Hamdoun

Dated: December 8, 2022

Dated: December 8, 2022

SO ORDERED.

KATHARINE H. PARKER, U.S.M.J. 12/13/2022

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Agreement

I have been informed by counsel that certain documents or information to be disclosed to
me in connection with the matter entitled have been designated as confidential. I have been
informed that any such documents or information labeled “CONFIDENTIAL” are confidential
by Order of the Court.
I hereby agree that I will not disclose any information contained in such documents to
any other person. I further agree not to use any such information for any purpose other than this
litigation.
DATED:

Signed in the presence of:

(Attorney)

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