Levin et al v. Bank of New York et al

Filing 1293

PROTECTIVE AGREEMENT AND ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Judge J. Paul Oetken on 3/2/2020) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
__________________________________________
JEREMY LEVIN and DR. LUCILLE LEVIN,
Plaintiffs,
v.

Civil Action No. 1:09-cv-05900-JPO-RLE

THE BANK OF NEW YORK MELLON, et al.
Defendants.
__________________________________________
PROTECTIVE AGREEMENT AND ORDER
WHEREAS, the above-referenced plaintiff-judgment creditors (“Plaintiffs”) are
seeking discovery in connection with the effort to enforce the judgment (“Judgment”) in
favor of Plaintiffs against the Islamic Republic of Iran and its agencies and instrumentalities
(“Iran”);
WHEREAS, in connection with Plaintiff’s discovery and enforcement effort, on or
about January 14, 2020, Plaintiffs served a subpoena (the “Subpoena”) on HSBC North
America Holdings Inc. (“HNAH”) seeking information concerning property that may be
held by HNAH in which Iran has or may have an ownership interest, as well as wire
transfer activity entities identified in the Subpoena;
WHEREAS, HNAH responded to the Subpoena and asserted various objections,
including that it is merely a holding company;
WHEREAS, Plaintiffs have agreed to withdraw the Subpoena as it relates to HNAH
and replace all references to HNAH therein with HSBC Bank USA, N.A. (“HBUS”), an
indirect, wholly owned subsidiary of HNAH;

WHEREAS, the documents and/or information sought from HBUS necessarily
contain customer financial information or other confidential information; and
WHEREAS, HBUS is willing to produce the information sought, to the extent it has
any such information in its possession, without waiver of any objections or defenses that
have or may be asserted by either HNAH or HBUS, but any such production is conditioned
upon, and subject to, an appropriate protective agreement and order;
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED that the
following procedures shall govern the production and exchange of all documents and other
information produced, given, or exchanged by HBUS and the use of any such materials
during the course of Plaintiffs’ enforcement proceedings:
A.

Counsel for HBUS (the “Producing Party”) may designate any documents,

discovery responses or other information taken, given or exchanged in connection with the
Subpoena as “Confidential” (hereinafter “Confidential Documents” or “Confidential
Information”) when the Producing Party in good faith believes that such documents,
discovery responses or confidential information constitute Confidential Information of or
concerning clients or customers of the Producing Party or wire transfer transactions in
which the Producing Party was involved, including correspondent banking customers or
financial information, trade secrets, or otherwise private or confidential information that
requires the protection provided in this Protective Agreement and Order. Confidential
Information includes, but is not limited to, the following kinds of information: non-public
customer financial information of any kind; wire transfer information, including accounts
holding the proceeds of blocked wire transfers; and non-public documents or information
reflecting account information by account or in the aggregate.
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B.

The names of persons, organizations or entities who hold or have held

accounts, or who are or have been parties to blocked wire transfers whose proceeds are held
in blocked accounts (“Accountholders”), the addresses of these Accountholders or their
status as Accountholders, and the amounts credited to their accounts, if identified in any
such Confidential Information, or any other information pertinent to, or necessary for, the
execution upon or turnover of assets shall remain confidential and be filed with the Court
under seal in the event it becomes necessary to bring such documents to the Court’s
attention unless the information is redacted to omit or otherwise protect account
information for those customers or Accountholders.
C.

Confidential Information may be used by the party receiving such

information (the “Receiving Party”) only for purposes of: (1) enforcing or satisfying the
Judgment, pursuant to procedures authorized by law, including a turnover motion; (2)
identifying assets or property of Iran; or (3) as otherwise allowed under this Protective
Agreement and Order. Under no circumstance may Plaintiffs use any Confidential
Information, produced in response to the Subpoena, to assert any claims against HNAH,
HBUS, or any of their affiliates, other than claims for turnover of property held by HBUS as
garnishee.
D.

Any documents or other materials to be designated as Confidential

Documents or Confidential Information shall be so designated by stamping the documents
or other materials, at the time of production, with the legend “Confidential” or a
substantially similar legend. Inadvertent failure to designate materials as confidential at the
time of production may be remedied by supplemental written notice and/or the production
of copies of properly stamped documents.
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E.

Inadvertent disclosure of materials that are subject to the attorney-client

privilege, the work product doctrine or any other privilege or immunity protecting such
materials from discovery shall not constitute a waiver of, or an estoppel as to, any claim of
such privilege or protection, and any person who has received such materials shall, upon
learning that such materials are subject to a claim of privilege, either (a) immediately return
such materials to the person that produced them or (b) promptly notify counsel, in writing,
of his or her possession of such materials and immediately cease to use such materials for
any purpose until obtaining either the consent of the Producing Party or an appropriate
order from the Court.
F.

Confidential Information shall not be disclosed or distributed to any person or

entity other than the following:
1. Counsel and co-counsel for the Receiving Party, including
paraprofessional and clerical personnel who are employees of such
counsel;
2. The Court and its support personnel in this proceeding or government
personnel incident to efforts to enforce or satisfy the Judgment;
3. The Receiving Party’s outside vendors that perform photocopying,
microfiching and other functions, but only for so long as necessary for
such vendors to perform those services, and provided that they are advised
in writing of the confidential nature of the materials involved;
4. Any expert or consultant retained by the Receiving Party’s counsel;
5. Any person or entity who, based on the face of the documents, has
previously seen the Confidential Information;
6. Witnesses to be called to give testimony under oath and their counsel; and
7. Individuals to whom disclosure is reasonably necessary to the
enforcement or satisfaction of the Judgment.

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G.

Any person described in paragraphs F(3) through F(7) above to whom

Confidential Documents or Confidential Information may be shown shall agree, by signing
the “Agreement To Be Bound By Protective Agreement And Order” (Exhibit A), to be
bound by the terms of this Protective Agreement and Order. To the extent Confidential
Information is disclosed to persons described in subparagraphs F(3) through F(7), only those
portions of the Confidential Information that are necessary for each specific proceeding
incident to efforts to collect on the Judgment, or that relate to specific assets upon which
Plaintiffs seek or may seek execution, shall be disclosed to such persons. In addition, all
persons described in subparagraphs F(3) through F(7) above shall be provided with a copy
of this Protective Agreement and Order and are hereby restricted to using Confidential
Information only for the purposes authorized by this Protective Agreement and Order.
Photocopies of documents containing Confidential Information shall be made only to the
extent necessary to facilitate a permitted use hereunder.
H.

This Protective Agreement and Order is without prejudice to HNAH’s

objections to the Subpoena (which are fully adopted by HBUS and shall apply equally to
HBUS), all of which are reserved. Moreover, this Protective Agreement and Order is
without prejudice to the right of any person to (a) object to any discovery request except as
to objections that relate to confidentiality; or (b) apply to the Court for a further order
relating to any Confidential Documents or Confidential Information. The provisions of this
Protective Agreement and Order may also be modified on the Court’s own motion, or by
motion by any party upon notice.
I.

The termination or any proceeding incident to efforts to collect on the

Judgment shall not relieve any person or party provided with Confidential Documents or
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Confidential Information of his, her or its obligations under this Protective Agreement and
Order.
J.

Entering into this Protective Agreement and Order, producing or receiving

Confidential Documents or Confidential Information, or otherwise complying with the
terms of this Protective Agreement and Order shall not: (i) waive, supersede or amend the
provisions of any prior confidentiality agreement between HBUS and any non-party; (ii) be
construed or operate as a waiver of any claim of domestic or foreign privilege or immunity
with respect to the production of any document or information; or (iii) be deemed to modify
or otherwise alter any applicable privileges, immunities or prohibitions against disclosure of
documents or information under domestic or foreign laws or regulations, including but not
limited to domestic or foreign bank secrecy laws, blocking laws, privacy laws or similar laws
or regulations.
K.

Within 90 days of the resolution of the last proceeding incident to efforts to

collect on the Judgment, by settlement or final judgment, and the conclusion of any appeals
therefrom, all Confidential Documents, Confidential Information, and copies thereof shall
promptly be destroyed, which destruction shall be certified in writing to the Producing
Party, provided that Plaintiffs’ counsel may retain one complete set of any such materials
that were presented in any form to the Court. Any such retained materials shall be placed in
an envelope marked “Confidential Information Subject to Protective Order,” and to which
shall be attached a copy of this Protective Agreement and Order.
L.

All counsel for any Receiving Party shall also maintain copies of any

executed Acknowledgments they obtain pursuant to this Protective Agreement and Order

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for at least one year following final resolution of the last proceeding incident to efforts to
collect on the Judgment, by settlement or final judgment, including any appeals therefrom.
M.

The provisions of this Protective Agreement and Order restricting the use and

disclosure of Confidential Information shall not apply to documents or other information
that are or become public knowledge without a violation of this Protective Agreement and
Order.
N.

Persons may become parties to this Protective Agreement and Order, and

become subject to its terms, by signing (by counsel or individually) the “Agreement To Be
Bound By Protective Agreement And Order” (Exhibit A), filing the signed and notarized
“Agreement To Be Bound By Protective Agreement And Order” with the Court, and
serving it on all counsel of record.
O.

Notices required under this Protective Agreement and Order shall be made to

counsel for a person or entity (or, if unrepresented, to the person or entity directly) via
facsimile or email and overnight delivery service and shall be deemed effective on the next
business day following the date sent.
P.

Upon execution, this Protective Agreement and Order shall have the effect of

an agreement among the signatories and is not conditioned on the Court’s eventual entry of
this Protective Agreement and Order.
Q.

The Court retains discretion whether to afford Confidential treatment to any

Confidential Document or Confidential Information submitted to the Court in connection
with any motion, application, or proceeding that may result in an order and/or decision by
the Court.

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March 2, 2020

Exhibit A to Protective Agreement and Order
AGREEMENT TO BE BOUND BY PROTECTIVE AGREEMENT AND ORDER
I,

, under penalty of perjury under the

laws of the United States of America state as follows.
My residence address is:
My current employer is:
My business address is:
My business telephone number is:
I have read and understand in its entirety the Protective Agreement and Order that
was issued by the United States District Court for the Southern District of New York in the
case of Levin v. The Bank of New York Mellon, et al., Civil Action No. 1:09-cv-05900-JPORLE. I agree to comply with and to be bound by all the terms of this Protective Agreement
and Order, and I understand and acknowledge that failure to so comply could expose me to
sanctions and punishment in the nature of contempt of court, money damages, interim or
final injunctive relief and/or such other relief that the Court deems appropriate. I solemnly
promise that I will not disclose in any manner any information or item that is subject to this
Protective Agreement and Order to any person or entity except in strict compliance with its
provisions.
Date:
Printed name:
Signature:
STATE OF ____________)
COUNTY OF ___________)
On the ____ day of _________ in the year ______, before me, the undersigned,
personally appeared __________________________________________, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed the same
in his/her capacity, and that by his/her signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
__________________________________________________
Notary Public
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