Levin et al v. Bank of New York et al

Filing 1350

STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Judge J. Paul Oetken on 12/23/2020) (jca)

Case 1:09-cv-05900-JPO-RWL Document 1350 Filed 12/23/20 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JEREMY LEVIN, et al.,
Plaintiffs,
-v-

09 Civ. 5900 (JPO)
STIPULATION AND
PROTECTIVE ORDER

BANK OF NEW YORK MELLON, et al.,
Defendants.
WHEREAS, Plaintiffs in this action have issued a subpoena dated June 3, 2020 (the
“Subpoena”), supplemented by a supporting affidavit as required by applicable regulations, see
31 C.F.R. § 1.11, seeking to obtain documents or information from the Office of Foreign Assets
Control (“OFAC”) of the United States Department of the Treasury concerning assets and
entities related to a civil forfeiture action captioned United States v. $2,340,000.00 Associated
with Petroleum Tanker Nautic, Civ. A. No. 20-1139 (JEB) (D.D.C.); and
WHEREAS, OFAC seeks the entry of this Stipulation and Protective Order (“Protective
Order”) authorizing the disclosure of documents or information responsive to Plaintiffs’
Subpoena to OFAC, while protecting its personnel against any claim under the Trade Secrets
Act, 18 U.S.C. § 1905, by producing documents or information responsive to the Subpoena;
NOW, THEREFORE, it is hereby agreed, by and between Plaintiffs and the United States
of America on behalf of OFAC, by and through their undersigned counsel; and for good cause
shown, the Court hereby ORDERS as follows:
1.

OFAC and its personnel are authorized, pursuant to the terms set forth in this

Protective Order, to disclose documents or information responsive to the Subpoena, irrespective
of whether the disclosure of the documents and information would be prohibited in the absence
of this Protective Order by the Trade Secrets Act, 18 U.S.C. § 1905.

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2.

All documents or information produced in response to the Subpoena and all

portions thereof (collectively, “Confidential Material”) are deemed confidential, unless Plaintiffs
are otherwise advised by OFAC in writing.
3.

Confidential Material may be used only for the purpose of attempting to collect

upon a judgment entered in this action pursuant to procedures authorized by law, and for no
other purpose.
4.

No person shall be permitted to have access to Confidential Material, nor shall

any person be informed of the substance of the Confidential Material by any person permitted to
have access thereto, except as provided in this Protective Order, as otherwise agreed upon by the
parties and OFAC in writing, or by order of the Court.
5.

Confidential Material shall not be disclosed or distributed to any person or entity

other than the following:
a. the attorneys (including their expert witnesses, paralegals, clerical staff, or
other assistants) for parties to this action or for parties to any proceeding
incident to efforts to collect on a judgment in this action, but only insofar as
the attorneys have a need for the Confidential Material in connection with this
action or such proceeding;
b. the courts and their support personnel in this action and in any proceeding
incident to efforts to collect on a judgment in this action;
c. persons or entities served with writs of attachment or other legal process
incident to efforts to collect on a judgment in this action or holding assets
identified in the Confidential Material;

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d. local or federal law enforcement personnel involved in any proceeding
incident to efforts to collect on a judgment in this action;
e. any other person to whom disclosure is required in order to pursue
proceedings incident to efforts to collect on a judgment in this action pursuant
to procedures authorized by law; or
f. the respective client representatives of the parties.
6.

To the extent that Confidential Material is disclosed to persons described in

subparagraphs 5(a), (c), or (e)-(f), only those portions of the Confidential Material that are
necessary for each specific proceeding incident to efforts to collect on any judgment in this
action or that relate to specific assets at issue shall be disclosed to such persons. All persons
described in subparagraphs 5(a), (c), or (e)-(f) shall be provided with a copy of this Protective
Order. All such persons are required to use Confidential Material only for purposes directly
related to the satisfaction of a judgment in this action and are prohibited from using Confidential
Material for any other litigation or proceeding or for any business, commercial, competitive,
personal, or other purpose. Copies of documents containing Confidential Material shall be made
only to the extent necessary to facilitate a use permitted by this Protective Order.
7.

Confidential Material shall not be disclosed to any person described in

subparagraphs 5(a), (c), or (e)-(f) unless and until such person has been shown this Protective
Order and has agreed in writing to be bound by its terms by signing a copy of the attached
Acknowledgment Form, annexed hereto as Exhibit A. A copy of each executed
Acknowledgment Form shall be kept by counsel for the party on behalf of whom disclosure is
made pursuant to subparagraphs 5(a), (c), or (e)-(f).
8.

Use of any Confidential Material at trial:

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a. Use of any Confidential Material produced and designated pursuant to this
Protective Order at trial shall be governed by a separate order from the Court.
b. Any party or non-party seeking to restrict the use of any Confidential Material
at trial shall apply to the court to apply whatever protection it deems
necessary. Absent a ruling by the court to the contrary, any document,
information, or transcript of testimony designated as Confidential Material
under this Protective Order that appears on an exhibit list or in deposition
designations, and that is admitted into evidence at trial, will be disclosed on
the public record, and any examination relating to such information will
likewise be disclosed on the public record.
c. In order to give OFAC the opportunity to apply to the court for protection of
its Confidential Material:
i. No later than 5 days after filing their final trial exhibit lists with any
court, each party receiving Confidential Material or notice of
Confidential Material shall notify OFAC of all exhibits appearing on
the party’s trial exhibit list that contain information that OFAC has
designated as Confidential. Notice may be given by email with a copy
by overnight delivery.
ii. No later than 5 days after filing their final trial deposition designations
with any court, each party receiving Confidential Material shall notify
OFAC of the page and line numbers of any deposition designations
and/or counter-designations that contain information that OFAC has

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designated as Confidential Material. Notice may be given by email
with a copy by overnight delivery.
iii. If any party subsequently learns that it intends to introduce into
evidence or otherwise use at trial any materials other than those
previously identified in paragraphs (i) or (ii) above that contain
information that OFAC has designated as Confidential Material, that
party shall, at least seven days before the anticipated use of the
Confidential Material, provide notice to OFAC of its intent to use the
Confidential Material. Notice may be given by email with a copy by
overnight delivery. For purposes of cross-examination, any notice
provided to OFAC pursuant to this paragraph 8(c)(iii) may not be
shared with the opposing party nor with the witness expected to be
called to testify at trial.
d. All procedures by which OFAC shall apply to the Court for protection at trial
of its Confidential Materials shall be governed by the rules of Court.
9.

The termination of this action or any proceeding incident to efforts to collect on a

judgment in this action shall not relieve any person or party provided Confidential Material of
any obligation under this Protective Order.
10.

All Confidential Material that is filed with any court and any pleadings, motions,

exhibits, or other papers filed with any court referencing or containing Confidential Material
shall be filed under seal to the extent of such Confidential Material, unless Plaintiffs are
otherwise advised by OFAC in writing, and kept under seal until further order of the Court.

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11.

Within sixty (60) days of the resolution of the last proceeding incident to efforts

to collect on a judgment in this action by settlement or final judgment and the termination of any
appeals therefrom, all Confidential Material, and all copies thereof, shall be promptly destroyed,
provided that counsel may retain one complete set of any such materials that were presented in
any form to a court. Any such retained materials shall be marked “Subject to Protective Order”
in the form in which they are stored and shall be stored with a copy of this Protective Order.
12.

The protections conferred by this Stipulation and Order do not cover the

following information: (a) any information that is in the public domain at the time of disclosure
or becomes part of the public domain after its disclosure as a result of publication not involving a
violation of this Order, including becoming part of the public record through trial or otherwise;
and (b) any information known to Plaintiffs prior to the disclosure or obtained by the Plaintiffs
after the disclosure from a source who obtained the information lawfully and under no obligation
of confidentiality to OFAC.
13.

This Protective Order does not waive or adjudicate any objection to the Subpoena

that OFAC may have or any claim of privilege involving any document or information
responsive to the Subpoena that OFAC may have. OFAC takes no position by moving for entry
of this Protective Order on the susceptibility to attachment of any asset that may be identified as
a result of its compliance with the Subpoena.
14.

OFAC shall have no duty to produce Confidential Material to anyone other than

Plaintiffs.
15.

Entry of this Protective Order shall not prohibit the United States or any agency,

department, officer, or employee of the United States from using or disclosing Confidential

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Material for any purpose authorized by law, or the redisclosure of Confidential Material directly
to OFAC or to counsel for the United States.
16.

This Protective Order is supplementary to any prior confidentiality or protective

order in place in this action, and its entry does not revoke, replace, or modify such orders.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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December 16, 2020
Dated: _____________________

AUDREY STRAUSS
Acting United States Attorney for the
Southern District of New York
Attorney for the United States
SAMUEL DOLINGER
Assistant United States Attorney
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel.: [phone]
E-mail: [e-mail]
Dated:

_December 15, 2020___
HOWARTH & SMITH
Attorneys for Plaintiffs Jeremy Levin, Dr.
Lucille Levin, and Suzelle M. Smith, Trustee
of the Jeremy Isadore Levin 2012 Revocable
Trust, as Amended
By:
PAULEEN TRUONG
SUZELLE M. SMITH
DON HOWARTH
523 West Sixth Street, Suite 728
Los Angeles, California 90014
Tel.: [phone]
E-mail: [e-mail]

SO ORDERED:
__________________________________
HON. J. PAUL OETKEN
United States District Judge
Dated:

Dated: December 23, 2020

___________________________

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Exhibit A

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JEREMY LEVIN, et al.,

09 Civ. 5900 (JPO)

Plaintiffs,

ACKNOWLEDGMENT OF
PROTECTIVE ORDER

-vBANK OF NEW YORK MELLON, et al.,
Defendants.

The undersigned hereby declares under penalty of perjury that he or she has read the
Protective Order entered in this action by the United States District Court for the Southern
District of New York, understands its terms, and agrees to be bound by each of those terms.
Specifically, and without limitation, the undersigned agrees not to use or disclose any
Confidential Material made available to him or her other than in strict compliance with the
Protective Order. The undersigned acknowledges that his or her duties under the Protective
Order shall survive termination of this action and are permanently binding and that failure to
comply with the terms of the Protective Order may result in the imposition of sanctions by the
Court.
Dated:

___________________________
___________________________
Signature
___________________________
Printed Name

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