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

Filing 66

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Jed S. Rakoff on 10/30/2011) (lmb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NE\V YORK

jJ

IRVING H. PICARD,
Plaintiff,
11-CV -03605 (JSR) (HBP)

- against ­

PROTECTIVE ORDER

SAUL B. KATZ, et al.,
Defendants.
----------------------------------- x

JED S. RAKOFF, U.S.DJ.
The Court having found that good cause exists for issuance of an appropriatelytailored confidentiality order governing the pre-trial phase of this action, it is therefore
hereby
ORDERED that any person subject to this Order

including without limitation

the parties to this action, their representatives, agents, experts and consultants, all third
parties providing discovery in this action, and all other interested persons with actual or
constructive notice ofthis Order

shall adhere to the following tenns, upon pain of

contempt:
1.

Any person subject to this Order who receives from any other person any

"Discovery Material" (i.e., infonnation of any kind provided in the course of discovery in
this action) that is designated as "Confidential" or "Highly Confidential" pursuant to the
tenns of this Order shall not disclose such Confidential Discovery Material or Highly
Confidential Discovery Material to anyone else except as expressly pennitted hereunder.

2.

The person producing any given Discovery Material may designate as

Confidential only such portion of such material as consists of:
(a)

previously nondisclosed finaneial information (including without

limitation profitability reports or estimates, percentage fees, design fees, royalty
rates, minimum guarantee payments, sales reports and sale margins);
(b)

previously nondisclosed material relating to ownership or control

of any non-publie eompany;
(c)

previously nondisclosed business plans, product development

information, or marketing plans;
(d)

any information of a personal or intimate nature regarding any

individual; or
(e)

any other category of infonnation hereinafter given confidential

status by the Court.
3.

With respect to the Confidential portion of any Discovery Material other

than deposition transeripts and exhibits, the producing person or that person's counsel
may designate such portion as "Confidential" by stamping or otherwise clearly marking
as "Confidential" the protected p011ion in a manner that will not interfere with legibility
or audibility, and by also producing for future public use another copy of said Discovery
Material with the confidential infonnation redacted. \Vith respect to deposition
transcripts and exhibits, a producing person or that person's counsel may indicate on the
record that a question calls for Confidential infonnation, in which case the transcript of
the designated testimony shall be bound in a separate volume and marked "Confidential
Infonnation Governed by Protective Order" by the reporter.

4.

The person producing any given Discovery Material may designate as

Highly Confidential only such pOliion of such material as consists of:
(a)

material that otherwise meets the definition of Confidential, where

the producing person reasonably believes that disclosure of the Confidential
material to a party or non-party would likely result in competitive, commercial,
financial or personal hann to the producing person or its clients or customers; or
(b)

any other category of information hereinafter given highly

confidential status by the Court.
5.

With respect to the Highly Confidential pOliion of any Discovery Material

other than deposition transcripts and exhibits, the producing person or that person's
counsel may designate such portion as "Highly Confidential" by stamping or otherwise
clearly marking as "Highly Confidential" the protected portion in a manner that will not
interfere with legibility or audibility, and by also producing for future public use another
copy of said Discovery Material with the highly confidential infonnation redacted. With
respect to deposition transcripts and exhibits, a producing person or that person's counsel
may indicate on the record that a question calls for Highly Confidential information, in
whieh ease the transcript of the designated testimony shall be bound in a separate volume
and marked "Highly Confidential Information Governed by Protective Order" by the
reporter.
6.

With respect to any Discovery Material or any portion of Discovery

Material that was produced prior to the date of this Order in Securities Investor Protection
Corp. v. Bernard L. MadoffInvestment Securities LLC, No. 08-01789 (BRL) (S.D.N.Y.
Bankr.), having been stamped or otherwise clearly marked as "Confidential," such

Discovery Material or such portion is deemed to have been designated as Confidential
Discovery Material pursuant to the terms of this Order upon being re-produced in this
action.
7.

If at any time prior to the trial of this action, a producing person realizes

that some portion[ s] of Discovery Material that that person previously produced without
limitation should be designated as Confidential or Highly Confidential, he may so
designate by so apprising all parties in writing, and such designated portionEs] of the
Discovery Material will thereafter be treated as Confidential or Highly Confidential
under the terms of this Order.
8.

No person subject to this Order other than the producing person shall

disclose any of the Discovery Material designated by the producing person as
Confidential to any other person whomsoever, except to:
(a)

the parties to this action;

(b)

counsel retained specifically for this action, including any

paralegal, clerical and other assistant employed by such counsel and assigned to
this matter;
(c)

as to any document, its author, its addressee, and any other person

indicated on the face of the document as having received a copy;
(d)

any witness who counsel for a party in good faith believes may be

called to testify at trial or deposition in this action, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto;
(e)

any person retained by a party to serve as an expert witness or

otherwise provide specialized advice to counsel in connection with this action,

provided such person has first executed a Non-Disclosure Agreement in the form
annexed as an Exhibit hereto;
(f)

stenographers engaged to transcribe depositions conducted in this

action; and
(g)
9.

the Comt and its support personnel.

No person subject to this Order other than the producing person shall

disclose any of the Discovery Material designated by the producing person as Highly
Confidential to any other person whomsoever, except to:
(a)

outside counsel retained specifically for this action, including any

paralegal, clerical and other assistant employed by such counsel and assigned to
this matter;
(b)

as to any document, its author, its addressee, and any other person

indicated on the face of the document as having received a copy;
(c)

any witness who counsel for a party in good faith believes may be

called to testify at ttial or deposition in this action, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto;
(d)

any person retained by a party to serve as an expelt witness or

otherwise provide specialized advice to counsel in connection with this action,
provided such person has first executed a Non-Disclosure Agreement in the form
annexed as an Exhibit hereto;
(e)

stenographers engaged to transcribe depositions conducted in this

action; and
(f)

the Court and its support personnel.

10.

Prior to any disclosure of any Confidential or Highly Confidential

Discovery Material to any person referred to in subparagraphs 8(d), 8(e), 9(d), or 9(e)
above, such person shall be provided by counsel with a copy of this Protective Order and
shall sign a Non-Disclosure Agreement in the form annexed as an Exhibit hereto stating
that that person has read this Order and agrees to be bound by its tem1S. Said counsel
shall retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to
opposing counsel either prior to such person being pem1itted to testify (at deposition or
trial) or at the conclusion of the case, whichever comes first.
11.

All Confidential or Highly Contidential Discovery Material filed with the

Court, and all pOltions of pleadings, motions or other papers filed with the Court that
disclose such Confidential or Highly Confidential Discovery Material, shall be tHed
under seal with the Clerk of the Court and kept under seal until further order of the Court.
The parties will use their best etTorts to minimize such sealing.

1

Any party who either objects to any designation of Discovery Material as

Confidential or Highly Confidential, or who, by contrast, requests still further limits on
disclosure beyond those afforded by such Confidential or Highly Confidential
designation (such as "attomeys' eyes only" in extraordinary circumstances), may at any
time prior to the trial of this action serve upon counsel for the designating person a
written notice stating with particularity the grounds of the objection or request. If
agreement cannot be reached promptly, counsel for all affected persons will convene a
joint telephone call with the COUlt to obtain a ruling.
13.

All persons are hereby placed on notice that the Court is unlikely to seal or

otherwise afford confidential treatment to any Discovery Material introduced in evidence

at trial, even if such material has previously been sealed or designated as Confidential or
Highly Contidential. The Court also retains discretion whether to afford confidential
treatment to any Contidential or Highly Confidential Document or inf01111ation contained
in any Confidential or :Highly Confidential Document submitted to the Court in
connection with any motion, application, or proceeding that may result in an order and/or
decision by the Court.
14.

Each person who has access to Discovery Material that has been

designated as Confidential or Highly Contidential shall take all due precautions to
prevent the unauthorized or inadvertent disclosure of such material.
15.

If, in connection with this litigation, a party inadveltently discloses

inf01111ation subject to a claim of attomey-c1ient privilege or att0111ey work product
protection ("Inadvertently Disclosed In±onnation"), such disclosure shall not constitute or
be deemed a waiver or forfeiture of any claim of privilege or work product protection
with respect to the Inadvertently Disclosed Intonnation and its subject matter.
16.

If a disclosing party makes a claim of inadvertent disclosure, the receiving

party shall, within five business days, return or destroy all copies of the Inadvertently
Disclosed Intonnation, and provide a celtitication of counsel that all such infonnation
has been retumed or destroyed.
17.

Within five business days of the notification that such Inadvertently

Disclosed Infonnation has been returned or destroyed, the disclosing party shall produce
a privilege log with respect to the Inadvertently Disclosed Infonnation.
18.

The receiving party may move the COUlt for an Order compelling

production of the Inadvertently Disclosed Infonnation. The motion shall be filed under

seal, and the movant shall not asseli as a ground for entering such an Order the fact or
circumstances of the inadvertent production.
19.

The disclosing party retains the burden of establishing the privileged or

protected nature of any Inadvertently Disclosed Information. Nothing in this Order shall
limit the right of any party to request an ~==:.!:! review of the Inadvertently Disclosed
Information.
20.

This Protective Order shall survive the tennination of the litigation.

Within 30 days of the final disposition of this action, all Discovery Material designated as
"Confidential" or "Highly Confidential" and all copies thereof, shall be promptly
returned to the producing person, or, upon permission of the producing person, destroyed.
21.

This Court shall retain jurisdiction over all persons subject to this Order to

the extent necessary to enforce any obligations arising hereunder or to impose sanctions
for any contempt thereof.
SO ORDERED.

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~KOFF, U.S.D.J.
Dated: New York, New York
October ---1Q, 2011

UNITED STATES DISTRICT COURT
SOUTHERN" DISTRICT OF NEW YORK
-

- ------------------------------- x

IRVING H. PICARD,

Plaintiff,
l1-CV-0360S (JSR) (HBP)

against

Non-Disclosure Agreement

SAUL B. KATZ, et aI.,
Defendants.
------- x

I, _____________, acknowledge that I have read and understand the
Protective Order in this action goveming the non-disclosure of those portions of
Discovery Material that have been designated as Confidential or Highly Confidential. I
agree that I will not disclose such Confidential or Highly Confidential Discovery Material
to anyone other than for purposes of this litigation and that at the conclusion of the
litigation I will retum all discovery information to the party or attomey from whom I
received it. By acknowledging these obligations under the Protective Order, I understand
that I am submitting myself to the jurisdiction ofthe United States District Court for the
Southem District of New York for the purpose of any issue or dispute arising hereunder
and that my willful violation of any term of the Protective Order could subject me to
punishment for contempt of Court.

Dated: