Lebewohl et al v. Heart Attack Grill LLC et al

Filing 8

FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - CONSENT MOTION for Protective Order Regarding Confidential Information, Stipulated and Agreed to by all Parties. Document filed by Jon Basso, Heart Attack Grill LLC.(Kain, Robert) Modified on 7/15/2011 (ldi).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JEREMY LEBEWOHL, UNCLE ABIES DELI
INC. d/b/a 2nd AVE DELI, UNCLE ABIES
DELI ON FIRST INC., and UNCLE ABIES
DELI SANDWICH TRADEMARKS LLC,
Plaintiffs,

CIVIL ACTION NO: 11-CIV-3153LAK

v.
HEART ATTACK GRILL LLC, HAG LLC,
and JON BASSO,
Defendants.

/
STIPULATION AND AGREED UPON PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION
The parties, by application to this Court, hereby stipulate and agree that certain
information, documents and things subject to discovery in this action may be claimed to be or to
contain trade secrets (including but not limited to business plans, financial documents, marketing
plans and customer and distributor lists) (hereinafter collectively referred to as "Proprietary
Information").
To expedite discovery and permit the parties to proceed without delay occasioned by
disputes regarding claims of confidentiality, the parties have agreed to provide access to and
accept such information, documents and things subject to the protective provisions set forth in
this Stipulation and Protective Order. Accordingly, and by agreement of the parties,
IT IS HEREBY ORDERED:
1.

All Proprietary Information, produced or exchanged in the course of this litigation
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shall be used solely for the purpose of preparation and trial of this litigation, and for no other
purpose and shall not be disclosed to any person except in accordance with the terms of this
Order.
2.

Identifying and Designating Proprietary Information as Confidential and

Disclosure to Qualified Persons Defined in Para. 4a – 4f. Proprietary Information includes any
document, tangible thing, transcript of oral testimony or recorded statement of counsel
designated by a party or other supplier as "CONFIDENTIAL" (including but not limited to
documents, transcripts, answers to interrogatories and other responses to discovery requests,
pleadings, briefs, summaries, notes, abstracts, motions, drawings and any instrument which
comprises, embodies or summarizes matter which is confidential to the party or other supplier
and which the party or other supplier desires not to be made public). A party or other supplier
will only designate information as "CONFIDENTIAL" which it in good faith believes contains
information in which it has a proprietary interest. "Other supplier" includes non-parties which
may produce Proprietary Information in this litigation. Hereinafter, the term "party" includes
such "other supplier" as may be applicable. CONFIDENTIAL Proprietary Information may be
disclosed to Qualified Persons consistent with the provisions of paragraphs 4 - 21 hereof.
3a.

Identifying and Designating Proprietary Information as AEO Confidential and

Disclosure to Qualified Persons Defined in Para. 4a, 4b, 4c and 4d. Proprietary Information
comprising particularly sensitive proprietary, business or financial information of a party may be
designated as "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or "CONFIDENTIAL -AEO,” consistent with the procedures of paragraphs 4 - 21 hereof. Documents and information
designated "CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or “AEO” shall be disclosed
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only to attorneys of record identified in paragraph 4(a), to technical experts or consultants
identified in paragraph 4(b), to staff of the Court identified in paragraph 4(c), and to court
reporters identified in paragraph 4(d).
3b.

Declassifying AEO Proprietary Information. Where a party perceives a need to

disclose Proprietary Information designated as "CONFIDENTIAL -- ATTORNEYS' EYES
ONLY" to persons not encompassed in one of the foregoing categories of persons specifically
permitted to receive such information, that party may request in writing the permission of the
producing party to disclose such information to such person or persons on a document by
document basis. Upon receipt of such a request, the producing party shall, in writing and within
ten (10) days of the request, grant or deny permission to disclose, or may limit or otherwise
designate the information to be disclosed, the manner of such disclosure, and the treatment (e.g.,
copying, receipt of materials, etc.) to be accorded the disclosure. In the event the producing
party fails to respond in writing, the request shall be deemed approved. The Court reserves the
right to reject any of the parties’ designations.
4.

Qualified Persons Defined. "Qualified Persons" means:
(a)

Attorneys of record, attorneys of counsel, attorneys supervising or

working under the direction of an attorney of record, and regular employees of such attorneys to
whom it is necessary that the information be shown for purposes of this litigation;
(b)

Actual or potential technical experts or consultants, who are not regularly

employed by a party and who have been designated in writing by notice to all parties prior to any
disclosure of Proprietary Information to such person and who have signed a document in the
form of Exhibit A attached hereto (such signed document will be retained by the party who has
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designated the expert or consultant and copies of the signed document will be promptly provided
to the other parties);
(c)

The staff of the Court;

(d)

Court reporters and their staff who are required to transcribe testimony

containing Proprietary Information;
(e)

If this Court so elects, any other person may be designated as a Qualified

Person by Order of this Court, after all parties have been given notice and an opportunity to be
heard; and
(f)

No more than three representatives of the plaintiff corporations (on behalf

of each plaintiff corporations, Jeremy Lebewohl, Josh Lebewohl and Jason Lebewohl) and no
more than two representatives of defendant corporations (on behalf of each defendant
corporation, Jon Basso), in house counsel of a party who is employed by the party and any
individual who is a named party to this litigation.

5.

Marking Documents. To designate documents produced in this action as having

Proprietary Information, each party or other supplier designating a document as privileged
("designating party") shall mark each page of such documents with: "CONFIDENTIAL (name
of designating party)," or "CONFIDENTIAL - ATTORNEYS' EYES ONLY (name of
designating party)." In lieu of marking the original of a document, if the original is not produced
the designating party may mark the copies that are produced or exchanged.
6.

Inspection of Documents. Claims of confidentiality as to documents made

available to a party for inspection and copying pursuant to F.R.C.P. 33(c) or otherwise under the
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Federal Rules of Civil Procedure may be made either before such documents are made available
for inspection and copying, or after designation for copying by the inspecting party but prior to
production of the requested copy.
7(a). Deposition Procedures. Information disclosed at the deposition of any party or one
of its present or former officers, directors, employees, or agents, or experts retained by counsel
for any party for purposes of this litigation, may be designated as Proprietary Information by
indicating on the record at the deposition that the testimony is subject to the provisions of this
Protective Order. In the event such a statement is made, all persons attending the deposition
who are not Qualified Persons permitted to view such Proprietary Information other than the
deponent will be excused from the deposition for each portion thereof that is Proprietary
Information. To the extent possible, the Court Reporter shall consecutively number each page of
the entire transcript and then segregate into separate binders the Proprietary Information.
7(b).

Any document or thing designated as Proprietary Information, CONFIDENTIAL

or CONFIDENTIAL - ATTORNEYS' EYES ONLY which is marked as an exhibit during a
deposition, if retained by the reporter for inclusion with deposition transcript, shall also be
segregated into separate binders.
7(c).

A party may also designate Proprietary Information disclosed at such a deposition

by notifying the other parties, in writing, within ten (10) days after receipt of the transcript by
counsel of record, of the specific pages and lines of the transcript which should be treated as
Proprietary Information. Each party shall attach a copy of such written Notice(s) to the face of
the transcript and each copy thereof in its possession, custody or control. Each transcript of a
deposition taken of any party, its present or former officers, directors, employees, or agents, or
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of experts retained by counsel for any party for purposes of this litigation shall be treated as
Proprietary Information for a period of ten (10) days after receipt of the transcript. No person or
party shall incur any liability hereunder with respect to any information produced in this
litigation by a party without a CONFIDENTIAL marking, unless and until the receiving person
or party shall have received written notice that such information has been designated Proprietary
Information marked CONFIDENTIAL.
7(d).

Notwithstanding anything to the contrary in this Protective Order, any deponent

may review the transcript of his own deposition at any time.
8.

Disclosure Limited to Qualified Persons and Originators, Authors and Recipients.

A party receiving Proprietary Information from any other party shall not make it available to
persons other than those individuals identified in paragraph 4 and shall limit disclosure to
Qualified Persons as provided in paragraphs 2 and 3, except that with respect to a document
designated as containing Proprietary Information, any person indicated on the face of the
document to be its originator, author or recipient of a copy thereof may be shown the document.
9.

Persons with Prior Knowledge. Persons who are not Qualified Persons under this

Protective Order may be interviewed or examined by any party concerning all Proprietary
Information of which such persons have prior knowledge. Furthermore, persons who are not
Qualified Persons under this Protective Order may be interviewed or examined as witnesses at
depositions and trial concerning all Proprietary Information of which such persons have prior
knowledge.
10.

Maintaining Records of Proprietary Information.

Proprietary Information

produced by any party to any other party shall be maintained at the offices of the recipient's
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attorney of record. Copies of Proprietary Information may be maintained in the offices of
appropriate Qualified Persons only to the extent that such appropriate Qualified Persons require
the copies to perform their work in this action. Each party making copies of Proprietary
Information shall ensure that each copy bears the designations provided on in Paragraphs 2 and
3. Copies of Proprietary Information may be made, or exhibits prepared, by independent printers
or illustrators for the purposes of this litigation after such printers or illustrators have executed a
document in the form of Exhibit A.
11A.

Challenges.

A party shall not be obligated to challenge the propriety of a

designation of Proprietary Information at the time the designation is made, and a failure to do so
shall not preclude a subsequent challenge to the designation. In the event that a party challenges
at any stage of this proceeding a designation of Proprietary Information, the parties shall first try
to resolve such a challenge in good faith on an informal basis. If a resolution cannot be reached,
the party challenging the Proprietary Information designation shall send a written notice to the
designating party identifying with particularity the challenged Proprietary Information, stating
the reasons why the Proprietary Information designation is being challenged and stating that the
party will within ten (10) days move the Court to remove the designated status of Proprietary
Information. The designating party bears the burden of establishing the need for the designated
status of Proprietary Information. Until such time as the challenge is resolved, such Proprietary
Information shall be maintained in accordance with this Protective Order.
11B.

Inadvertent Disclosures. For purposes of this subsection 11B, an "Inadvertently

Produced Document" is a document produced to a party in this litigation that could have been
withheld, in whole or in part, based on a legitimate claim of attorney-client privilege,
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work-product protection, or other applicable privilege.
(i) Disclosure of any Inadvertently Produced Document shall not result in the waiver of
any privilege or protection associated with such document, nor result in a subject matter waiver
of any kind.
(ii) A producing party may demand the return of any Inadvertently Produced Document
within ten (10) days of production. If the demand for return is not made within ten (10) days of
production, the producing party must explain why the demand for return was tardy. The demand
for return must contain information sufficient to identify the Inadvertently Produced Document.
Upon receipt of such demand, the receiving party must immediately return the Inadvertently
Produced Document (and any copies thereof) to the producing party and must immediately
delete all electronic versions of the document. Challenges to such demand for return will be
governed by paragraph 11A.

12.

Proposed Experts.

Any notice of a proposed expert or consultant as an

appropriate Qualified Person shall include in the designation a curriculum vitae including an
employment history and a statement of all affiliations with or prior work for or payments by the
designating party or any business or concern related to the designating party.
13(a). Use of Proprietary Information in Court Proceedings. A party may use Proprietary
Information in any affidavits, briefs, memoranda of law, deposition transcript or other document
filed in this action but such documents shall be filed as required by the Sealed Records Filing
Instructions on the SDNY website.
13(b). The party making such filing must follow Sealed Records Filing Instructions.
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Where Proprietary Information is a severable portion of a document, e.g., interrogatories,
deposition transcripts, test reports, lines of a legal memorandum, etc., the portion containing
Proprietary Information should, where practicable, be filed and served separately from the rest of
such document.
13(c). This shall not prevent a second copy of any pleading or paper, specifically
intended for review by the Court, from being forwarded to the Court under seal as per the Sealed
Records Filing Instructions for consideration by the Court.
14.

Return of Proprietary Information. Within sixty (60) days after the conclusion of

this litigation, whether by settlement, judgment or final appeal, documents designated as
Proprietary Information and copies of such documents shall be returned to the designating party
except as this Court may otherwise order or to the extent such information was used as evidence
at the trial. This Protective Order shall continue to be binding after the conclusion of this
litigation except (a) that there shall be no restriction of exhibits used in Court (unless such
exhibits were admitted under seal), and (b) that a party may seek written permission from the
designating party or Order of the Court with respect to dissolution or modification of this
Protective Order.
15.

Legal Advice Permitted. This Order shall not restrict any attorney of record in

this action from rendering legal advice to his or her client with respect to this action and, in the
course thereof, generally referring to or relying upon his examination of Proprietary Information.
In rendering such advice, and in otherwise communicating with his or her client, the attorney
shall not disclose the specific content of any Proprietary Information or its source to his or her
client.
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16.

Responsibility for the Experts. Any party designating an expert or consultant as a

Qualified Person under Paragraph 4(c) shall have the duty to reasonably ensure that such person
observes the terms of this Protective Order.
17.

Challenge Based on Public Knowledge. A determination that information is

public knowledge shall not be made unilaterally by any party, but rather by challenge to the
propriety of a designation of Proprietary Information made in accordance with Paragraph 11.
18.

No Waiver. Nothing contained in this Order shall be deemed a waiver of any

requirements for a showing of good cause under the Court rules or of any right of the conveying
party to seek an order from the Court regarding further conditions for any inspection of its
property, documents and/or premises. Notwithstanding the foregoing provisions, this Order
shall be without prejudice to the right of any party to challenge the propriety of discovery on
grounds of privilege, relevance, materiality, etc., and nothing contained herein shall be construed
as a waiver of any objection which might be raised as to the admissibility at trial of any
evidentiary material.
19.

Amendment by Agreement or Court Order. This Order may be amended by the

agreement of counsel for the parties, subject to the approval of the Court, provided it is in the
form of a stipulation that shall be filed with the clerk and made part of the record in this case.
This Order shall be without prejudice to the right of any party to apply to the Court for such
further protective order under the provisions of the Court rules as justice may require.
20.

Injunctive Relief. In the event anyone shall violate or threaten to violate any term

of this Order, the parties agree that the aggrieved party may immediately apply to obtain
injunctive relief against any such person violating or threatening to violate any of the terms of
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this Order and, in the event the aggrieved party shall do so, the respondent person subject to the
provisions of this Order shall not employ as a defense thereto the claim that the aggrieved party
possesses an adequate remedy at law. The parties and any other person subject to the terms of
this Order agree that this Court has jurisdiction over such person or party, for the purposes of
enforcing this Order. In the event that any Confidential Information is disclosed by a receiving
party in violation of this Order, the Confidential Information shall not lose its status through
such disclosure, and the parties shall take all steps reasonably required to assure its continued
confidentiality. Nothing herein shall limit or restrict the aggrieved party from seeking additional
remedies or relief from the actual or threatened violation of this Order.
21.

Miscellaneous. This Order may be executed in counterparts, each of which shall

be deemed an original hereof.

The descriptive headings in this order are inserted for

convenience only and do not limit or effect the provisions in this order.
22.

Requesting Additional Relief. None of the foregoing provisions of this Protective

Order shall be deemed to preclude any party hereto from seeking and obtaining, on an
appropriate showing, additional protection with respect to the Protective Order or relief from this
Protective Order with respect to matter designated as “CONFIDENTIAL – ATTORNEY’S
EYES ONLY” or “CONFIDENTIAL.”
DONE AND ORDERED this

day of

_______, 2011.

UNITED STATES DISTRICT COURT JUDGE
Agreed as to Form and Substance:
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By: _/RobertKain/___________
Robert C. Kain, Jr. (RK7454)
[e-mail]
Kain & Associates, Attorneys at Law, P.A.
900 S.E. 3rd Ave., Suite 205
Ft. Lauderdale, FL 33316
Tel: [phone]
Fax: [phone]
Counsel for Defendants

By:_/WilliamChuang/___________
William W. Chuang, Esq.
Jakubowitz & Chuang LLP
401 Broadway, Suite 408
New York, NY 10013
Counsel for Plaintiffs

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EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JEREMY LEBEWOHL, UNCLE ABIES DELI
INC. d/b/a 2nd AVE DELI, UNCLE ABIES
DELI ON FIRST INC., and UNCLE ABIES
DELI SANDWICH TRADEMARKS LLC,
Plaintiffs,

CIVIL ACTION NO: 11-CIV-3153LAK

v.
HEART ATTACK GRILL LLC, HAG LLC,
and JON BASSO,
Defendants.

/
AFFIDAVIT AND AGREEMENT OF:
______________________________________________________________
STATE OF
COUNTY OF

)
)ss
)

I,

, being duly sworn, state that:

1.

My address is

2.

My present employer is and the address of my present employment is

3.

My present occupation or job description is

4.
I have received a copy of this Joint Protective Order in this action (the "Order")
and I have read the same. Counsel for
has explained to me my obligations
under the Order.
5.

I will comply with all of the provisions of the Order.
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6.
I will hold in confidence, will not disclose to anyone not qualified under the
Order, and will use only for purposes of this action, any confidential information which is
disclosed to me.
7.
I will return all confidential information which comes into my possession, and all
notes, documents or things which I prepare relating thereto, to counsel for the party by whom I
am employed or retained.
8.
I hereby submit to the jurisdiction of this Court for the purpose of enforcement of
this Affidavit and Agreement pursuant to the Order.

SUBSCRIBED AND SWORN TO before me this

day of

Notary Public
My commission expires:
Protective-Order-Stip-2011-v3.wpd

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, ___ .