Liveperson, Inc. v. 24/7 Customer, Inc.

Filing 74

OPINION #105723: Upon the conclusions set forth above, the proposed Expert Disclosure, Source Code and Patent Prosecution Provisions as modified above are incorporated into the PPO. The parties shall meet and confer to generate a list of competitors to be used in conjunction with the Expert Disclosure Provision. Defendant's motion to compel is denied. The parties shall provide the Court with an updated PPO for its review, after meeting and conferring regarding the modifications as outlined above. The parties remain free to agree to, and jointly propose, language in place of that provided in this Opinion. It is so ordered. (As further set forth within this Order.) (Signed by Judge Robert W. Sweet on 7/29/2015) (ajs) Modified on 7/31/2015 (ca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------x
LIVEPERSON,

INC.,
Plaintiff,
14 Civ. 1559 (RWS)

- against OPINION
24/7 CUSTOMER,

INC.,

Defendant.
----------------------------------------x
A P P E A RA N C E S:
Attorneys for Plaintiff

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COHEN & GRESSER LLP
800 Third Avenue
New York, New York 10022
By:
Mark S. Cohen, Esq.
Daniel H. Tabak, Esq.

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HONIGMAN MILLER SCHWARTZ AND COHN LLP
130 S. First Street, 4th Floor
Ann Arbor, MI 48104
By:
J. Michael Huget, Esq.
Sarah E. Waidelich, Esq.
HONIGMAN MILLER SCHWARTZ AND COHN LLP
660 Woodward Ave, 2290 First National Bldg.
Detroit, MI 48226
By:
Jeffrey K. Lamb, Esq.
Roger P. Meyers, Esq.
Andrew W. Clark, Esq.

3 k"":/

Attorneys for Defendant
O'MELVENY & MYERS, LLP
7 Times Square
New York, NY 10036
By:
Carolyn S. Wall, Esq.
O'MELVENY & MYERS, LLP
Two Embarcadero Center, 28th Floor
San Francisco, California 94111-3823
By:
George A. Riley, Esq.
Mark E. Miller, Esq.
David Eberhart, Esq.
Susan Roeder, Esq.
Elysa Q. Wan, Esq.

ii

Sweet, D.J.

Pending before the Court are two discovery-related
motions made by defendant 24/7 Customer, Inc.

("[24]7" or

"Defendant") and opposed by plaintiff Liveperson, Inc.
("Liveperson" or "Plaintiff").

The first is for inclusion of

Defendant's proposed provisions into a draft protective order
governing discovery in this litigation (the "Proposed Protective
Order" or "PPO") . 1

The second seeks an order compelling

Plaintiff to produce a deponent pursuant to Rule 30(b) (6) to
testify on Plaintiff's behalf regarding a number of the
allegations made it its complaint (the "30(b) (6) Deposition")
Based upon the conclusions set for below, Defendant's provisions
as modified below are incorporated into the PPO and Defendant's
motion to compel is denied.

Prior Proceedings

A detailed recitation of the facts of the underlying
case is provided in this Court's opinion dated January 16, 2015,
which addressed Defendants' motion to dismiss the First Amended

A copy of Defendant's draft of the PPO is available as Exhibit A to Letter
to the Court from Carolyn S. Wall, dated April 1, 2015 (hereinafter "Wall
April 1 Ltr.").
This Opinion will designate citations to the PPO provisions
as reflected in Exhibit A of the Wall April 1 Ltr. as "PPO ~
1

1

Complaint.

See LivePerson, Inc. v. 24/7 Customer, Inc., No. 14

CIV. 1559 RWS, 2015 WL 249329, at *1 (S.D.N.Y. Jan. 16, 2015).
Familiarity with those facts is assumed.

With respect to the PPO, the parties submitted a
revised joint discovery plan to the Court on March 4, 2015.
That revised joint discovery plan requires the parties to
confer, agree to, and file a proposed protective order governing
the production of confidential information, a protocol for the
collection, review, and production of electronically-stored
information, including software code, and a "clawback" agreement
governing the return or disposal of any inadvertently produced
privileged information, by March 18, 2015.

Though the parties

have reached several significant agreements, including a joint
ESI protocol approved by the Court on April 2, 2015, the parties
remain unable to reach agreement on three topics:

(1) procedures

enabling a party to object before its sensitive information is
disclosed to an individual retained as an expert or consultant
by the opposing party (the "Expert Disclosure Provision");

(2)

procedures for the production and review of source code (the
"Source Code Provisions"); and (3) a patent prosecution bar (the
"Patent Prosecution Bar").

Defendant requests that this Court

incorporate its proposed provisions into PPO which will govern
this case.
2

With respect to the 30 (b) (6) deposition,

[24] 7 served

on Liveperson a notice of deposition for March 31, 2015.

The

topics in that notice generally seek to identify the bases for
various allegations in the operative complaint.

Liveperson

replied by letter dated March 16, 2015, objecting to the
deposition.

Liveperson characterizes the deposition as an

attempt to invade its attorney work product and as a form of
contention discovery that must await conclusion of the
Defendant asks that Plaintiff be compelled to

discovery.

produce 30 (b) ( 6) a deponent.

Proposed Protective Order - Expert Disclosure Provision

Defendant seeks an Expert Disclosure Provision that
would require disclosure of the identity of non-testifying
experts that will be granted access to highly confidential data.
Plaintiff contends that the Rule 26 of the Federal Rules of
Civil Procedure prohibits this provision.

Rule 26 draws a distinction between the
discoverablility of testifying and non-testifying experts.
26 (b) (4) (D)

states, in relevant part:

3

Rule

Ordinarily, a party may not, by
interrogatories or deposition, discover
facts known or opinions held by an expert
who has been retained or specially employed
by another party in anticipation of
litigation or to prepare for trial and who
is not expected to be called as a witness at
trial [unless as provided under Rule 35(b)
or the party shows "exceptional
circumstances."].

Some courts, though not all, have read this discovery limitation
as applying not only to facts and opinions, but also to the
identity of non-testifying experts.
Music,

Inc., 300 F.R.D. 120, 122

See Williams v. Bridgeport

(S.D.N.Y. 2014)

(Rule 26

precludes from discovery of the identity of an informal
consulting expert); Dover v. British Airways, PLC (UK), No. CV
2012-5567 RJD MDG, 2014 WL 4065084, at *l (E.D.N.Y. Aug. 15,
2014) aff'd, No. 12 CV 5567 RJD MDG, 2014 WL 5090021
Oct.

9, 2014)

(same); Ager v. Jane C. Stormont Hospital and

Training School for Nurses,
1980)
No.

(E.D.N.Y.

622 F.2d 496, 500-01

(10th Cir.

(same); MacGillivray v. Consolidated Rail Corp., Civ. A.

91-0774, 1992 WL 57915, at *3

(E.D.Pa. March 17, 1992)

(same); Arco Pipeline Co. v. S/S Trade Star, 81 F.R.D. 416,
( E. D. Pa. 197 8)

(same) ; but see Convolve,

Corp., No. 00 Civ.5141

(GBD)

(S.D.N.Y. Sept. 1, 2004)

Inc. v. Compaq Computer

(JCF), 2004 WL 1944834, at *l

(Rule 26(b) (4) (D)

does not apply to

extend to the identity of a non-testifying expert); Manzo v.
Stanley Black & Decker,

Inc., 2015 WL 136011, *2
4

417

(E.D.N.Y.

January 9, 2015)

(same); In re Welding Fume Products Liab.

Litig., 534 F. Supp. 2d 761,

767

(N.D. Ohio 2008)

(same);

Biovail Corp. Int'l v. Hoechst Aktiengesellschaft, 1999 WL
3354801 (D.N.J. Nov. 13, 1999)

(same); Baki v. B.F. Diamond

Const. Co., 71 F.R.D. 179, 182

(D. Md. 1976)

(same).

This Court concludes a non-testifying expert's
identity is protected from discovery absent a showing of
exceptional circumstances.

See Williams, 300 F.R.D. at 122; see

generally § 2032 Expert Witnesses-Discovery as to SpeciallyRetained Experts Who Will Not Be Called, 8A Fed. Prac. & Proc.
Ci v. § 2032

( 3d ed.)

("A threshold question is whether [Rule

2 6 (b) ( 4) ( D) ] forbids routine discovery even of the identity of
consulting experts absent exceptional circumstances.

The

Tenth Circuit [has held] that the "proper showing" required to
obtain the identity of consulting experts is a showing of
exceptional circumstances that would justify discovery of these
persons'

facts and opinions.

[T]he Tenth Circuit's

approach has become predominant among courts.").

Defendant's contention that Rule 2 6 (b) ( 4) ( D) 's
disclosure limitations apply only to discovery requests is
unconvincing.

See Def.'s Reply Mem. 2-4.

The work product

implications are similar regardless of whether an expert's
5

identity is revealed in response to a discovery demand or in
response to the Expert Disclosure Provision to which Plaintiff
has not acceded.

See Todd v. Tempur-Sealy Int'l, Inc., No. 13-

cv-04984, 2015 WL 433481, at *4

(N.D. Cal. Feb. 2, 2015)

(noting

a protective order provision similar to the Expert Disclosure
Provision here "potentially invades the attorney work product
doctrine and removes Plaintiffs' ability to have non-disclosed
consulting experts").

Consequently, a showing of exception

circumstances is necessary for imposition of the Expert
Disclosure Provision.

By the terms of the PPO, the Expert Disclosure
Provision applies where a party seeks to provide a nontestifying expert with "information or items" designated as
"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "HIGHLY
CONFIDENTIAL - SOURCE CODE" (hereinafter "Highly Confidential
Information").

See PPO

~~

7.2, 7.4.

The PPO defines Highly

Confidential Information, in relevant part, as:

[E]xtremely sensitive "CONFIDENTIAL
Information or Items," disclosure of which
to another Party or Non-Party would create a
substantial risk of serious harm that could
not be avoided by less restrictive means,
including without limitation technical
documentation such as schematics, block
diagrams, technical manuals, service
manuals, and other highly sensitive
6

technical information; and further including
without limitation competitively sensitive
information such as business plans or
strategies, marketing plans or strategies,
product development or design information,
financial information (including without
limitation sales, revenue, profit and loss
information), and information subject to
confidentiality obligations to customers of
the Parties, [including such information]
that comprises computer source code (e.g.,
C++ code) . . . [that] does not include
descriptions or summaries of the Designated
Code, design specifications, schematics,
flow charts, or block diagrams, nor shall it
include materials that appear in user
manuals, technical manuals, service manuals,
presentations, or similar documents.

See PPO

~~

2.8-2.9.

Based on the definition of the information

triggering the Expert Disclosure Provision, injury may arguably
be sufficiently definite, serious, and specific to warrant
imposition of the Expert Disclosure Provision.

See Pl.'s Mem.

in Opp'n 3 (contending that the Expert Notice Provision must be
justified by a "clearly defined, serious, and specific injury
from disclosure"); see also Biovail, 1999 WL 3354801 at *8
(evaluated under an "exceptional circumstances" standard, the
"highly proprietary nature of the information which is at stake
in this case" required that "at a minimum .

. it is only

appropriate that each side know at least the identify of an
expert before the information covered by the Protective Order is
provided."); Rywkin v. New York Blood Center, 1999 WL 435242, *l
(S.D.N.Y)

(approving advance notice provisions); Bank of New
7

York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 145
(S.D.N.Y. 1997)

(same).

However, Defendant has not adequately

argued exception circumstances beyond the general assertion that
"at stake is extremely sensitive and confidential business
information that, if disclosed to a competitor, would be unduly
harmful for either party."

See Def.'s Reply Mem. 4.

Moreover, the Court is persuaded by Plaintiff's
contention that procedures less potential intrusive with respect
to the work product doctrine can serve to protect Highly
Confidential Information from disclosure.

The PPO defines an

expert in relevant part as a person with specialized knowledge
who "is not a current employee of a Party or a past employee of
another Party,

. at the time of retention, is not

anticipated to become an employee of a Party, and

is not a

current employee or a current consultant of a Party's
competitor."

PPO

~

2.7.

The PPO further requires each expert

to execute an "Agreement to Be Bound" by the terms of the PPO
prior to receiving access to Highly Confidential Information,
which includes the definitional limitation on who can serve as
an expert found in PPO

~

2.7.

See PPO

~

7.2 , PPO Ex. A.

In the interest of further safeguarding the Highly
Confidential Information, current PPO
8

~

7.4 will be replaced

with the following provision, adapted from Todd, 2015 WL 433481,
at *4:

Procedures for Approving or Objecting to
Disclosure of HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY and HIGHLY CONFIDENTIAL
- SOURCE CODE Information or Items to
Experts: Unless otherwise ordered by the
Court or agreed to in writing by the
Designating Party, a Party that seeks to
disclose to an Expert any document,
information, or other item that has been
designated HIGHLY CONFIDENTIAL - ATTORNEYS'
EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE
CODE first must complete a reasonable
investigation of the Expert and determined
(1) that the Expert's current employer(s)
are not competitors of the Receiving Party,
(2) that the Expert is not a past employee
of a Party or a Party's competitor and at
the time of retention not anticipated to
become an employee of a Party or a
competitor; and (3) that the Expert, and all
persons working with or for the Expert that
will receive any document, information, or
other item that has been designated HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY or
HIGHLY CONFIDENTIAL, have executed the
"Agreement to Be Bound" (Exhibit A) .
For each such investigation completed, the
Party or its counsel who conducted the
investigation must prepare and sign a
declaration attesting to the reasonableness
of his or her investigation and that the
investigation determined (1) that the
Expert's current employer(s) are not
competitors of the Receiving Party, (2) that
the Expert is not a past employee of a Party
or a Party's competitor and at the time of
retention not anticipated to become an
employee of a Party or a competitor; and (3)
that the Expert, and all persons working
with or for the Expert that received the
9

Protected Material and executed the
"Agreement to Be Bound" (Exhibit A) . The
Receiving Party shall keep and store all
such declarations and shall provide them to
the Designating Party at the conclusion of
the litigation if the Court so orders upon
showing of good cause by the Designating
Party.

Relatedly, Plaintiff's request for an order requiring
the parties to confer to develop a definition of competitor for
the purposes of the Expert Disclosure Provision is granted.
Pl.'s Mem. in Opp'n 2.

See

A list of agreed-upon competitors will

provide each Party and each affected expert with a basis upon
which to attest that a given expert is in fact not affiliated
with a competitor of the Designating Party.

The parties shall

meet and confer to create an initial list, and shall have an
ongoing duty to meet and confer in the event either party wishes
to modify the competitor list.

Proposed Protective Order - Source Code Provisions

Defendant next seeks to establish certain procedures
for the production of source code.

See Wall April 1 Ltr. 3-4.

Plaintiff contends these provisions are "premature at the outset
of discovery" and potentially unnecessary, and requests that
entry of these provisions be delayed by 60 days.
in Opp'n 5-6.
10

See Pl.'s Mem.

The importance of source code to this litigation is
without doubt, as is the sensitivity of at least a portion of
the source code.
"SAC")

~~

57-58,

See Second Amended Complaint (hereinafter
65, 77; see also Def.'s Reply Mem. 6 (noting

that several of Plaintiff's responses to Defendant's document
request condition production on the existence of a protective
order protecting source code confidentiality).

Though Plaintiff

contends that "at least some, and perhaps most, of 24/7's source
code potentially at issue may have been publically viewable at
the relevant times," Pl.'s Mem. in Opp'n 5, that still leaves
some source code that requires safeguards.

Indeed, Plaintiff

has not provided an alternate procedure, requesting instead a
60-day postponement of entry of these provisions.

More than 60

days have passed since this dispute was first raised, and this
issue remains unresolved.

In the interest of protecting the

confidentiality of source code and in providing a methodology
that will permit discovery to move forward, Defendant's proposed
provisions relating to protection of source code will remain in
the PPO.

Proposed Protective Order - Patent Prosecution Bar

The final issue relating to the PPO is Defendant's
11

proposed provisions regarding a patent prosecution bar.
Wall April 1 Ltr. 4-6.

See

The parties agree that the "party

seeking imposition of a patent prosecution bar must show that
the information designated to trigger the bar, the scope of
activities prohibited by the bar, the duration of the bar, and
the subject matter covered by the bar reasonably reflect the
risk presented by the disclosure of proprietary competitive
information."
1373, 1378

In re Deutsche Bank Trust Co. Americas, 605 F.3d

(Fed. Cir. 2010)

(cited by both parties: see, e.g.,

Wall April 1 Ltr. 5; Pl.'s Mem. in Opp'n 7).

The parties

dispute the PPO's language relating to the "scope of activities
prohibited by the bar," specifically the use of the phrase
"directly or indirectly" in the following provision:

For purposes of [the Patent Prosecution
Bar], "prosecution" includes directly or
indirectly advising on, consulting on,
preparing, prosecuting, drafting, editing,
and/or amending of applications,
specifications, claims, and/or responses to
office actions, or otherwise affecting the
disclosure in patent applications or
specifications or the scope of claims in
patents or patent applications, whether in
original prosecution, reissue,
reexamination, inter partes review, or
postgrant review.

PPO

~

9.2

(emphasis added); see also Pl.'s Mem. in Opp'n 7;

Def.'s Reply Mem. 8.

12

Plaintiff correctly notes that "The Federal Circuit
explicitly held that not all patent prosecution attorneys are
involved in competitive decision-making."
(citing In re Deutsche Bank,

Pl.'s Mem. in Opp'n 8

605 F.3d at 1378-79.

Specifically,

the Federal Circuit observed that:

Some attorneys involved in patent
litigation, for example, may have patent
prosecution duties that involve little more
than reporting off ice actions or filing
ancillary paperwork, such as sequence
listings, formal drawings, or information
disclosure statements.
Similarly, some
attorneys may be involved in high-altitude
oversight of patent prosecution, such as
staffing projects or coordinating client
meetings, but have no significant role in
crafting the content of patent applications
or advising clients on the direction to take
their portfolios.
There is little risk that
attorneys involved solely in these kinds of
prosecution activities will inadvertently
rely on or be influenced by information they
may learn as trial counsel during the course
of litigation.

Id. at 1379-80.

Plaintiff proposed excising the term

"indirectly" from PPO

~

9.2.

See Pl.'s Mem. in Opp'n 7.

Defendant counters that the phrase "directly and indirectly" is
intended to encompass the type of substantive work which was
approved for a bar in In re Deutsche Bank.
Mem. 8.

13

See Def.'s Reply

Since the parties cannot agree on the meaning of the
phrase in question, the optimal approach is to excise it
completely, and add clarifying language to the section on the
activities exempted from the bar.

PPO

~

9.2 will now read:

For purposes of this Section 9,
"prosecution" includes advising on,
consulting on, preparing, prosecuting,
drafting, editing, and/or amending of
applications, specifications, claims, and/or
responses to office actions, or otherwise
affecting the disclosure in patent
applications or specifications or the scope
of claims in patents or patent applications,
whether in original prosecution, reissue,
reexamination, inter partes review, or
postgrant review.
The term "prosecution"
does not include patent prosecution duties
that involve little more than reporting
off ice actions or filing ancillary
paperwork, such as sequence listings, formal
drawings, or information disclosure
statements; involvement in high-altitude
oversight of patent prosecution, such as
staffing projects or coordinating client
meetings having no significant role in
crafting the content of patent applications
or advising clients on the direction to take
their portfolios; and any other activities
that present little risk that attorneys
involved solely in these kinds of
prosecution activities will inadvertently
rely on or be influenced by information they
may learn as trial counsel during the course
of litigation.
Further, to avoid any doubt,
"prosecution" as used in the section 9 does
not include representing a party who is
challenging the validity of a patent in any
such proceedings.

14

30(b) (6) Deposition

Finally, Defendant seeks to compel Plaintiff to
produce a 30(b) (6) deponent to answer questions on topics
relating to allegations made in the SAC.

See generally, Letter

to the Court from Carolyn S. Wall, dated April 17, 2015
(hereinafter "Wall April 17 Ltr.") Attachment A Subject Matters
For Testimony (hereinafter "Attachment A")
proposed 30 (b) ( 6) deposition topics) .

(reflecting the

Plaintiff contends that

the proposed deposition would violate its work-product privilege
and constitutes untimely contention discovery.
Pl.'s Mem. in Opp'n 2-7.

See generally

In the alternative, should the Court

grant the instant motion to compel,

Plaintiff requests that the

Court preclude Defendant from pursuing supplemental 30(b) (6)
discovery.

Id. at 7.

Having reviewed Defendant's proposed deposition
topics, the Court is persuaded by Plaintiff's contention that
compelling this 30(b) (6)

deposition is unwarranted.

See Pl.'s

Mem. in Opp'n 3 (citing United States v. District Council of New
York City & Vicinity of United Bros. of Carpenters & Joiners of
Arn.,

No.

90 Civ. 5722, 1992 WL 208284

(S.D.N.Y. Aug. 18, 1992)).

While the work product implications are not as clear
15

cut District Council, 2 a considerable number of the 30(b) (6)
deposition topics fairly constitute contention discovery and
improperly require Plaintiff to "collect and synthesize all of
the information in [its] possession;

. that [it] then impart

that body of knowledge to [the deponent]; and .

. that [the

deponent], in turn, feed it back to defendant[] in response to
[its] deposition questions."
A

~~

Id. at *15; see, e.g., Attachment

1 (relating to "every alleged trade secret"), 3 (instances

of breach of contract), 8 (facts supporting contention of patent
infringement),

9 (facts supporting contention of violation of

intellectual property; 10 (facts supporting contention of
spyware deployment and system disruption); 11 (facts supporting
contention of interference with business relationships), 16
(facts supporting contention of abuse of back-end systems); 20
(facts supporting contention of intentional manipulation of
Liveperson's technology); 21

(facts supporting contention that

[24]/7 "abused" its access to Liveperson's systems); 23 (facts
supporting contention that [24]/7 engaged in illicit conduct or
spying tactics); 26 (facts supporting contention that [24]/7's
conduct amounted to hijacking of Liveperson's program), 29
(facts supporting contention of unauthorized use of Liveperson's

2

In that case, the Defendant intended to depose a government law enforcement
agent regarding the investigative steps taken by government attorneys and law
enforcement officials which led to the Defendant's prosecution.
See
generally District Council, 1992 WL 208284, at *1-2.

16

programs), 36-37

(facts supporting contentions of breach of two

agreements at issue in the litigation, and 38

(facts supporting

contention of improper copying or hijacking of Liveperson's
programs through client websites).

A motion to compel is unjustified at this stage in
this litigation.

Plaintiff informed Defendant of all

individuals with relevant knowledge regarding the allegations in
the SAC, and in response to Defendants' document requests, will
produce documents relevant to the SAC's allegations.

To the

extent that Defendant is not after contention discovery,

[24]/7

is free to depose the witnesses identified by Plaintiff.

These

depositions will be more practicable and less burdensome than
requiring one or more general 30(b) (6) deponents to synthesize
and familiarize themselves with the facts and contentions
responsive to every one of Defendant's 40 deposition topics.

To

the extent that Defendant is seeking contention discovery,
"depositions, including 30(b) (6) depositions, are designed to
discover facts, not contentions or legal theories, which, to the
extent discoverable at all prior to trial, must be discovered by
other means."
F.R.D. 361, 362

JPMorgan Chase Bank v. Liberty Mut. Ins. Co., 209
(S.D.N.Y. 2002).

Under the Local Rules,

contention interrogatories, available at the close rather than
the beginning of discovery, will provide Defendant will the
17

information it seeks currently.

See Local Rule 33.3(c)

("At the

conclusion of other discovery, and at least 30 days prior to the
discovery cut-off date, interrogatories seeking the claims and
contentions of the opposing party may be served unless the Court
has ordered otherwise."); see also, Nycomed U.S. Inc. v.
Glenmark Generics Ltd., No. 08-cv-5023, 2009 WL 3463912, at *l
(noting contention interrogatories are "a more appropriate means
of obtaining the information sought" through a 30 (b) (6)
deposition).

Consequently, the motion to compel is denied.

18

Conclusion

Upon the conclusions set forth above, the proposed
Expert Disclosure, Source Code and Patent Prosecution Provisions
as modified above are incorporated into the PPO.

The parties

shall meet and confer to generate a list of competitors to be
used in conjunction with the Expert Disclosure Provision.
Defendant's motion to compel is denied.

The parties shall provide the Court with an updated
PPO for its review, after meeting and conferring regarding the
modifications as outlined above.

The parties remain free to

agree to, and jointly propose, language in place of that
provided in this Opinion.

It is so ordered.

New York, NY
July /_
2015

9 ,

ROBERT W. SWEET
U.S.D.J.

19