Irving H. Picard v. Saul B. Katz et al

Filing 196

ORDER ON DEFENDANTS' MOTION TO ENFORCE PROTECTIVE ORDER AND ORDER APPROVING SETTLEMENT AGREEMENT: It is hereby ORDERED: The Rule 45 Katz Documents shall be subject to the Protective Order entered in Picard v. Katz, et al., 11-CV-03605 (JSR) (ECF No. 66). The Trustee and the defendants in Merkin shall be bound by the Protective Order with respect to the Rule 45 Katz Documents and as further set forth in this order. Compliance with or any motion, objection, or other response to the Subpoena, or to any other Rule 45 subpoena that was issued by the Trustee in Merkin to a Katz producing party, must be filed or served, as applicable, on or before Tuesday, September 11, 2012., ( Motions due by 9/11/2012.) (Signed by Judge Jed S. Rakoff on 8/31/2012) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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II-CV-03605 (JSR)(HBP)

SAUL B. KATZ, et aI.,
Defendants .
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EDJ ORDER ON DEFENDANTS' MOTION TO ENFORCE PROTECTIVE
ORDER AND ORDER APPROVING SETTLEMENT AGREEMENT
Defendants in the above·captioned matter having asked this Court to enforce this Court's
order, dated May 31, 2012, authorizing and approving the parties' April 13, 2012 Settlement
Agreement and the protective order, dated October 30,2011 ("Protective Order"), entered in

Picardv. Katz, at al., (11-CV-03605) (1SR) ("Katz") with respect to a subpoena ("Subpoena"),
dated July 31,2012, issued pursuant to Rule 45 of the Federal Rules of Civil Procedure by Irving

H. Picard, trustee ("Trustee") for the liquidation of the business of Bernard L. Madoff
Investment Securities LLC, under the Securities Investor Protection Act, ]5 U.S.c. §§ 78aaa, el
seq. and Bernard

L. Madoff, as plaintiff in Picard v. Merkin

el al., Adv. Pro. No. 09-01182

(BRL) ("Merkin"); 1
Upon consideraticr of the parties' arguments submitted in letters to the Court and during
oral argument on August 22, 2012, and upon the Trustee's statement that he is seeking
documents in response to the Subpoena, or in response to any subpoena issued by the Trustee in

1 The Subpoena seeks only documents that were previously designated as "Confidential"
or "Highly Confidential" by Defendants pursuant to the Protective Order.

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Merkin to a third party that was also a producing party in Ka!z (together, "Rule 45 Ka!z
Documents"\ solely for the purpose of proving his case-in-chief in the Merkin litigation;
h is hereby ORDERED:
1.

The Rule 45 Ka!z Documents shall be subject to the Protective Order entered in

Picard v. Katz, et al., ll-CV-03605 (JSR) (ECF No. 66). The Trustee and the defendants in
Merkin shall be bound by the Protective Order with respect to the Rule 45 Katz Documents.
2.

In the event that the Trustee receives a request to disclose any of the Rule 45 Katz

Documents to anyone other than the defendants in Merkin, the Trustee shall provide Defendants
and/or the appropriate producing party with ten (10) business days' notice so that Defendants
and/or the appropriate producing party may seek a protective order or other appropriate remedy
before this Court or before the court or tribunal issuing the order, subpoena, or directive,
depending upon the issue raised. In the event that Defendants and/or the appropriate producing
party do not file a motion for a protective order or seek other judicial relief within ten (10)
business days of receiving notice, the Trustee may comply with the request. Any party to which
the Trustee discloses Rule 45 Ka!z Docllments under this paragraph shall be bound by this Order
and the Protective Order and shall be provided with copies of both.
3.

In the event that the Merkin defendants receive a request to disclose any of the

Rule 45 Ka!z Documents, the Merkin defendants shaH provide Defendants and/or the appropriate
producing party with ten (10) business days' notice so that Defendants and/or the appropriate
producing party may seek a protective order or other appropriate remedy before this Court or
before the court or tribunal issuing the order, subpoena, or directive, depending upon the issue
raised. In the event that Defendants and/or the appropriate producing party do not file a motion

2 Rule 45 Katz Documents do not include any of Defendants' documents that previously
were produced to the Merkin defendants with Defendants' consent.

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for a protective order or seek other judicial relief within ten (10) business days of receiving
notice, the Merkin defendants may comply with tbe request. Any party to which the Merkin
defendants disclose Rule 45 Katz Documents under this paragraph shall be bound by this Order
and the Protective Order and shall be provided with copies of both.
4.

Neither the Trustee nor the Merkin defendants may use the Rule 45 Katz

Documents for any purpose other than in the Merkin litigation, absent written consent from the
producing party and the written agreement of the receiving party to be bound by this Order and
the Protective Order with respect to the Rule 45 Kat: Documents.
5.

Nothing herein shall prejUdice the ability of Defendants, or any other Kat:

producing party that is served with a Rule 45 subpoena in the Merkin litigation, to challenge any
such subpoena on any ground in the appropriate court, including with respect to the relevance of
any of the documents sought in connection with the Trustee's Merkin case-in-chief
6.

Compliance with or any motion, objection, or other response to the Subpoena, or

to any other Rule 45 subpoena that was issued by the Trustee in Merkin to a Katz producing
party, must be filed or served, as applicable, on or before Tuesday, September 11,2012.
SO

0. RDERED.

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This~ Day of~ember, 2012

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