Modern Settings LLC et al v. Basf Metals Limited et al

Filing 304

CONFIDENTIALITY STIPULATION ANDPROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Magistrate Judge Valerie Figueredo on 10/17/2023) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

IN RE PLATINUM AND PALLADIUM
ANTITRUST LITIGATION

Civil Action No. 14-cv-9391 (GHW) (VF)
CONFIDENTIALITY STIPULATION AND
PROTECTIVE ORDER

WHEREAS, the Parties having agreed to the following terms of confidentiality, and the
Court having found that good cause exists for the issuance of an appropriately tailored
confidentiality order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, it is hereby
ORDERED that the following restrictions and procedures shall apply to the information
and documents exchanged by the parties in connection with the above-captioned action
(“Action”):
1.

Counsel for any party may designate any document or information, in whole or in

part, as “Confidential” if counsel determines, in good faith, that such designation is necessary to
protect the interests of the client in information that is proprietary, a trade secret or otherwise
sensitive non-public information, including, but not limited to, non-public financial information,
business plans, product-development information, or marketing plans; information of a personal
or intimate nature regarding any individual; information for which applicable federal, state or
foreign law requires confidential treatment; or information that has been deemed by a relevant
domestic or foreign court or regulatory authority to require confidential treatment. Information
and documents designated by a party as Confidential will be stamped “CONFIDENTIAL.”
2.

Counsel for any party may designate any document or information, in whole or in

part, as “Highly Confidential” if counsel determines, in good faith, that such designation is
necessary to protect the interests of the client in information for which (i) unauthorized

disclosure would result in competitive, commercial or financial harm to the producing party or
its personnel, clients, or customers, or (ii) applicable foreign or domestic laws, courts, or
regulatory authorities require the equivalent of “Highly Confidential” treatment. Information and
documents designated by a party as Highly Confidential will be stamped “HIGHLY
CONFIDENTIAL.”
3.

Counsel for any party may designate deposition exhibits or portions of deposition

transcripts as Confidential or Highly Confidential either by: (a) indicating on the record during
the deposition that a question calls for Confidential or Highly Confidential information, in which
case the reporter will bind the transcript of the designated testimony in a separate volume and
mark it as “Confidential Information Governed by Protective Order” or “Highly Confidential
Information Governed by Protective Order;” or (b) notifying the reporter and all counsel of
record, in writing, within 30 days after the final transcript of such deposition is made available to
the Parties and the testifying witness, of the specific pages and lines of the transcript that are to
be designated “Confidential” or “Highly Confidential,” in which case all counsel receiving the
transcript will be responsible for marking the copies of the designated transcript in their
possession or under their control as directed by the producing party or that person’s counsel. All
Parties will treat the entire deposition transcript as if it had been designated Confidential until 30
days after the final transcript of such deposition is made available to the Parties and the testifying
witness.
4.

Any Confidential or Highly Confidential information disclosed will be held and

used by the person receiving such information solely for use in connection with this Action and
not for any other purpose or in any other litigation or proceeding.

5.

In the event a party challenges another party’s designation of confidentiality,

counsel shall make a good faith effort to resolve the dispute, and in the absence of a resolution,
the challenging party may seek resolution by the Court. Nothing in this Protective Order
constitutes an admission by any party that Confidential or Highly Confidential information
disclosed in this case is relevant or admissible. Each party reserves the right to object to the use
or admissibility of the Confidential or Highly Confidential information.
6.

All documents or information designated as “CONFIDENTIAL” shall not be

disclosed, summarized, described, characterized, or otherwise communicated to any person,
except:
a.

The requesting Party (including current officers, directors, employees, or
insurers of the Party), and counsel, including in-house counsel;

b.

Employees of such counsel assigned to and necessary to assist in the
litigation;

c.

Consultants, vendors (including trial vendors), or experts assisting in the
prosecution or defense of the matter, to the extent deemed necessary by
counsel;

d.

as to any document, its author, its addressee, and any other person
indicated on the face of the document as having received a copy;

e.

any witness (and attorneys for witnesses) who counsel for a Party in good
faith believes may be called to testify at trial or deposition in this Action
and who counsel for a Party in good faith believes has knowledge of the
subject matter contained in the document, provided such person signs an

agreement to be bound by this Order in the form attached as Exhibit A
prior to or at the trial or deposition; and
f.

the Court (including any mediator, or other person having access to any
Confidential information by virtue of his or her position with the Court),
or any private mediator or arbitrator that the Parties engage in this matter.

7.

All documents or information designated “Highly Confidential” shall not be

disclosed, summarized, described, characterized, or otherwise communicated to any person
whatsoever except, as necessary, to:
a. counsel retained specifically for this Action, including any paralegal, clerical or
other assistant that such outside counsel employs and assigns to this matter;
b. any person identified in subparagraph 6(c), provided such person signs an
agreement to be bound by this Order in the form attached as Exhibit A;
c. the persons identified in subparagraphs 6(d), 6(e), and 6(f) of this Order; and
d. any in-house litigation counsel of the Party whose access to the information is
reasonably required to supervise or manage the case.
8.

Prior to disclosing or displaying Confidential or Highly Confidential information

to any person, counsel must:
a.

Inform the person of the confidential nature of the information or
documents;

b.

Inform the person that this Court has enjoined the use of the information
or documents by him/her for any purpose other than this litigation and has
enjoined the disclosure of the information or documents to any other
person; and

c.

Require each such person to sign an agreement to be bound by this Order
in the form attached as Exhibit A prior to or at the deposition.

9.

To the extent a party wishes to file with the Court documents or information

designated as Confidential or Highly Confidential by an opposing party, that party shall file the
Confidential or Highly Confidential documents electronically under seal in accordance with Rule
I.g.2 of the Hon. Valerie Figueredo’s Individual Practices In Civil Cases. The filing party shall
simultaneously serve counsel for the opposing party via email with the materials filed under seal.
Within ten business days of the filing under seal, the party designating the confidential
information shall file a letter setting forth the basis for any permanent redactions or sealing on
the docket, and any party opposing the redactions or sealing shall indicate its position in the
letter. The letter shall attach the documents with any proposed redactions. At the same time as
the filing, the party seeking permission to seal shall email a copy of the letter to Judge
Figueredo’s chambers with the proposed redactions highlighted in yellow.
10.

The disclosure of a document or information without designating it as

“Confidential” or “Highly Confidential” shall not constitute a waiver of the right to designate
such document or information as Confidential Information. If so designated, the document or
information shall thenceforth be treated as “Confidential” or “Highly Confidential” information
subject to all the terms of this Stipulation and Order.
11.

Any Personally Identifying Information (“PII”) (including, but not limited to,

social security numbers, financial account numbers, passwords, and information that may be
used for identity theft) or any data relating to an identified or identifiable individual, the
disclosure of which is subject to the data protection or data privacy laws of any domestic or
foreign jurisdiction (“Protected Personal Data”) that is exchanged in discovery shall be

maintained by the receiving party in a manner that is secure and confidential and shared only
with authorized individuals in a secure manner. The producing party may specify the minimal
level of protection expected in the storage and transfer of its information and may require as a
condition to disclosure of Protected Personal Data that the receiving party enter into a data
transfer agreement with the producing party that protects the Protected Personal Data in such
form as the producing party reasonably considers necessary to address the requirements of any
data protection or data privacy laws of the applicable domestic or foreign jurisdiction. In the
event the party who received PII or Protected Personal Data experiences a data breach, it shall
immediately notify the producing party of same and cooperate with the producing party to
address and remedy the breach. Nothing herein shall preclude the producing party from asserting
legal claims or constitute a waiver of legal rights and defenses in the event of litigation arising
out of the receiving party’s failure to appropriately protect PII or Protected Personal Data from
unauthorized disclosure. The producing party may redact from any information or documents
that are subject to disclosure PII or Protected Personal Data that, if disclosed, may breach the
data protection or data privacy laws of the applicable domestic or foreign jurisdiction.
12.

Pursuant to Federal Rule of Evidence 502, the production of privileged or work-

product protected documents or communications, electronically stored information (“ESI”) or
information, whether inadvertent or otherwise, shall not constitute a waiver of the privilege or
protection from discovery in this case or in any other federal or state proceeding. This Order
shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence
502(d). Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a
review of documents, ESI or information (including metadata) for relevance, responsiveness
and/or segregation of privileged and/or protected information before production.

13.

If a producing party claims that it has inadvertently produced material that is

subject to a claim of privilege, including the attorney-client privilege, work product protection,
or bank-examination privilege, such inadvertent production shall not function as a waiver of the
privilege and the producing party shall inform the receiving party in writing of the inadvertent
disclosure. Within ten business days of receiving the written notification, the receiving party
shall confirm that it has destroyed the privileged material or provide notice of its intent to
challenge the assertion of the privilege claim.
14.

If a receiving Party learns that, by inadvertence or otherwise, it has disclosed

Confidential or Highly Confidential information to any person or in any circumstances not
authorized under this Order, that receiving Party must, as soon as practicable, but in any event,
no longer than five business days after discovery by the receiving Party or its counsel of record
of the disclosure: (a) notify in writing the producing Party of the unauthorized disclosure(s); (b)
make reasonable efforts to retrieve all copies of the Confidential or Highly Confidential
information that was disclosed without authorization; (c) inform the person or persons to whom
the unauthorized disclosure or disclosures were made of the terms of this Order; and (d) request
that such person or persons either (1) execute an agreement to be bound by this Order in the form
attached as Exhibit A; or (2) promptly return or destroy all copies of the Confidential or Highly
Confidential information and refrain from publicizing or using for any purpose such Confidential
or Highly Confidential information.
15.

In the event a producing party reasonably believes that its Confidential

information or Highly Confidential information has been improperly disclosed, it may apply to
the Court to obtain appropriate relief. In the event that the aggrieved producing party seeks
injunctive relief, it must petition the Court for such relief.

16.

At the conclusion of litigation, Confidential information Highly Confidential

information, and any copies thereof shall be promptly (and in no event later than 30 days after
entry of final judgment no longer subject to further appeal) returned to the producing party or
certified as destroyed, except that the parties’ counsel shall be permitted to retain their working
files on the condition that those files will remain protected.
17.

This Order will survive the termination of the litigation and will continue to be

binding upon all persons subject to this Order to whom Confidential or Highly Confidential
information is produced or disclosed. This Court will 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.
18.

Nothing herein shall limit the producing party’s rights concerning its own

documents or information that it has designated Confidential or Highly Confidential.
19.

Nothing herein shall preclude the parties from disclosing material designated to

be “Confidential” or “Highly Confidential” information if otherwise required by law or pursuant
to a valid subpoena. If, at any time, material designated “Confidential” or “Highly Confidential”
governed by this Order is subpoenaed or requested by any court, administrative or legislative
body, or by any other person or entity purporting to have authority to require the production
thereof, the party to whom the subpoena or request is directed shall, to the extent permitted by
law, promptly give written notice to the producing party and include with that notice a copy of
the subpoena or request. To the extent permitted by law, the party to whom the subpoena or
request is directed also shall not produce documents for at least 14 days after notice of the
subpoena is provided to the producing party on in order to provide the producing party a

reasonable period of time in which to seek to quash, limit or object to the subpoena or request, or
to move for any protection for the Confidential or Highly Confidential material.

SO STIPULATED AND AGREED.

Dated: October 17, 2023
SO ORDERED.
_______________________
VALERIE FIGUEREDO
United States Magistrate Judge

Exhibit A
Agreement
I have been informed by counsel that certain documents or information to be disclosed to
me in connection with the matter entitled have been designated as confidential or highly
confidential. I have been informed that any such documents or information labeled
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” are confidential by Order of the Court.
I hereby agree that I will not disclose any information contained in such documents to
any other person. I further agree not to use any such information for any purpose other than this
litigation.

DATED: _________________________

________________________________
Signed in the presence of:

________________________________
(Attorney)