White et al v. West Publishing Corporation et al

Filing 38

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Jed S. Rakoff on 7/3/2012) (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDWARD L. WHITE, p.e.,
ECFCASE

Plaintiff,
Civil Action No. 12-CV-1340 (JSR)

v.

~

WEST PUBLISHING CORPORATION
d/b/a "West," and REED ELSEVIER INC.
d/b/a LexisNexis,

~ED] STIPULATED
PROTECTIVE ORDER

Defendants. .

lED S. RAKOFF, U.S.D.l.
The parties having agreed to the following terms of confidentiality, and the Court
having found that good cause exists for issuance of an appropriately-tailored
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 terms, upon pain of
contempt:
1.

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

"Discovery Material" (i.e., information of any kind provided in the course of discovery in
this action) that is designated as "Confidential" or "Outside Attorneys' Eyes Only"
pursuant to the terms ofthis Order shall not disclose such Discovery Material to anyone
else except as expressly permitted hereunder.

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A.

"Confidential" Information

A person may designate as "Confidential" those materials, documents, or
information, whether in written, oral, electronic, graphic, audiovisual, or any other form,
that are not publicly available and that the designating person in good faith believes
contain information that is (a) confidential, commercially sensitive, competitive, or
potentiaJly invasive of an individual's privacy interests, (b) not generally known by the
public or third parties, and (c) not normally revealed to the public or third parties or, if
disclosed to third parties, is such that the designating person would require such third
parties to maintain the information in confidence.

B.

"Outside Attorneys' Eyes Only" Information

A person may designate as "Outside Attorneys' Eyes Only" only such
Confidential materials, documents, or information as contain (a) highly sensitive
information relating to research for and/or operation of proprietary services, (b) highly
sensitive business information, (c) highly sensitive financial information or marketing
plans and forecasts, customer lists, customer data, pricing data, or cost data, (d) other
such documents, information, or materials that relate to proprietary information that the
producing person reasonably believes is of such nature and character that the
unauthorized disclosure of such information to persons other than those listed in
Paragraph 5, below, could irreparably injure the producing person.
2.

With respect to the Confidential or Outside Attorneys' Eyes Only portion

of any Discovery Material other than deposition transcripts and exhibits, the producing
person or that person's counsel may designate such portion as "Confidential" or "Outside
Attorneys' Eyes Only" by stamping or otherwise clearly marking as "Confidential" or

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"Outside Attorneys' Eyes Only" the protected portion in a manner that will not interfere
with legibility or audibility. 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 Confidential or Outside Attorneys' Eyes Only information, in which case the
transcript of the designated testimony shall be bound in a separate volume and marked
"Confidential Information Governed by Protective Order" by the reporter. Alternatively,
with respect to deposition transcripts and exhibits, no later than ten (10) business days
following receipt of the transcript from the reporter, a producing person or that person's
counsel may identify, by page and line number, testimony to be designated Confidential
or Outside Attorneys' Eyes Only, in which case the transcript ofthe designated testimony
shall be bound in a separate volume and be marked "Confidential Information Governed
by Protective Order" by the reporter. Prior to the expiration of the ten-business day
period, deposition transcripts and exhibits shall be treated as Outside Attorneys' Eyes
Only information.
3.

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 Outside Attorneys' Eyes Only, that
person may so designate by so apprising all parties in writing, and such designated
portion[s] of the Discovery Material will thereafter be treated as Confidential or Outside
Attorneys' Eyes Only under the terms of this Order.
4.

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:

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(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;

(g)

the Court and its support personnel.

5.

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

and

disclose any of the Discovery Material designated by the producing person as Outside
Attorneys' Eyes Only to any other person whomsoever, except to:
(a)

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;

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(c)

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

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

stenographers engaged to transcribe depositions conducted in this action;

(e)

the Court and its support personnel.

6.

Prior to any disclosure of any Confidential or Outside Attorneys' Eyes

and

Only Discovery Material to any person referred to in subparagraphs 4(d), 4(e), or 5(c)
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 terms. 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 permitted to testify (at deposition or
trial) or at the conclusion of the case, whichever comes first.
7.

All Confidential or Outside Attorneys' Eyes Only Discovery Material

filed with the Court, and all portions of pleadings, motions or other papers filed with the
Court that disclose such Confidential or Outside Attorneys' Eyes Only Discovery
Material shall be filed under seal with the Clerk of the Court and kept under seal until
further order of the Court. The parties will use their best efforts to minimize such
sealing.
8.

Any party who either objects to any designation of confidentiality, or who,

by contrast, requests still further limits on disclosure, may at any time prior to the trial of

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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
Court to obtain a ruling.
9.

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
Outside Attorneys' Eyes Only. The Court also retains discretion whether to afford
confidential treatment to any document designated as Confidential or Outside Attorneys'
Eyes Only, or information contained in any document designated as Confidential or
Outside Attorneys' Eyes Only, submitted to the Court in connection with any motion,
application, or proceeding that may result in an order and/or decision by the Court.
10.

Each person who has access to Discovery Material that has been

designated as Confidential or Outside Attorneys' Eyes Only shall take all due precautions
to prevent the unauthorized or inadvertent disclosure of such material.
11.

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

information subject to a claim of attorney-client privilege or attorney work product
protection ("Inadvertently Disclosed Information"), 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 Information and its subject matter.
12.

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

party shall, within five (5) business days, return or destroy all copies of the Inadvertently

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Disclosed Information, and provide a certification of counsel that all such information
has been returned or destroyed.
13.

Within five (5) business days of the notification that such Inadvertently

Disclosed Information has been returned or destroyed, the disclosing party shall produce
a privilege log with respect to the Inadvertently Disclosed Information.
14.

The receiving party may move the Court for an Order compelling

production of the Inadvertently Disclosed Information. The motion shall be filed under
seal, and shall not assert as a ground for entering such an Order the fact or circumstances
of the inadvertent production.
15.

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 in camera review of the Inadvertently Disclosed
Information.
16.

This Protective Order shall survive the termination of the litigation.

Within 30 days of the final disposition of this action, all Discovery Material designated as
"Confidential" or "Outside Attorneys' Eyes Only," and all copies thereof, shall be
promptly returned to the producing person, or, upon permission of the producing person,
destroyed.
17.

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.

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SO STIPULATED AND AGREED.

Gregory . lue

GREG R A. BLUE, P.e.

405 Lex' gton Avenue, Suite 2600

New York, New York ]0174

Telephone: [phone]

Facsimile: [phone]

Email: [e-mail]

Raymond A. Bragar

BRAGAR WEXLER EAGEL & SQUIRE,

P.C.
885 Third Ave., Suite 3040
New York, New York 10022
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff
EDWARD L. WHITE. P.e.

Cmig B. Whitney
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
James F. McCabe (admitted pro hac vice)
Paul Goldstein (admitted pro hac vice)
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Attorneys for Defendant

LexisNexis, a div. ofREED ELSEVIER INC.

Benjamin . Marks
Jonathan Bloom
John R. Gerba
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Tel: [phone]
Fax: [phone]
[e-mail]

Attorneys for Defendant
WEST PUBLISHING CORP

SO ORDERED.

\-J-(d-ny-1040J 16

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UNITED STATES DISTRlCT COURT
SOUTHERN DISTRlCT OF NEW YORK
EDWARD L. WHITE, P.C.,
ECFCASE

Plaintiff,
Civil Action No. 12-CV-1340 (JSR)

v.
Non-Disclosure Agreement

WEST PUBLISHING CORPORATION
d/b/a "West," and REED ELSEVIER INC.
d/b/a LexisNexis,
Defendants.

I, _____________ , acknowledge that I have read and

understand the Protective Order in this action governing the non-disclosure of those .
portions of Discovery Material that have been designated as "Confidential" or "Outside
Attorneys' Eyes Only." I agree that I will not disclose such Confidential or Outside
Attorneys' Eyes Only Discovery Material to anyone other than for purposes of this
litigation and that at the conclusion of the litigation I will return all discovery infonnation
to the party or attorney from whom I received it. By acknowledging these obligations
under the Protective Order, I understand that I am submitting myself to the jurisdiction of
the United States District Court for the Southern District of New York for the purpose of
any issue or dispute arising hereunder and that my willful violation of any tenn of the
Protective Order could subject me to punishment for contempt of Court.

Dated:

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