Julian v. MetLife, Inc. et al

Filing 122

AMENDED CONFIDENTIALITY AGREEMENT...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Magistrate Judge Barbara C. Moses on 3/10/2020) (mro)

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
DEBRA JULIAN & STEPHANIE
MCKINNEY, on behalf of themselves and
others similarly situated,
Plaintiffs,
v.
METROPOLITAN LIFE
INSURANCE COMPANY,

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Case No. 1:17-cv-00957-AJN

Defendant.
AMENDED CONFIDENTIALITY AGREEMENT
This Amended Confidentiality Agreement (the “Agreement”) supersedes the June 13,
2017 Confidentiality Agreement in this Action (Dkt. 30), and is entered into as of March 6, 2020,
by and among Plaintiffs Debra Julian (“Julian”) and Stephanie McKinney (“McKinney”) (Julian
and McKinney, collectively, “Plaintiffs”) and Defendant Metropolitan Life Insurance Company
(“Defendant,” “MLIC” or the “Company”) (collectively, the “Parties” and each individually a
“Party” to this Agreement). The Parties hereby stipulate and agree that discovery in the abovecaptioned civil action (the “Action”) will require production of documents and information that
one or both of the Parties regards as containing sensitive and non-public business information,
financial information, personnel information, personal information, trade secrets, and/or other
confidential information.

Disclosure of this information to the general public would be

prejudicial to the Parties, and litigation over claims of confidentiality would unduly consume the
resources and time of the Court and Parties.
Therefore, in the interests of promoting the just, speedy, and inexpensive determination
of the Action, the Parties hereby stipulate and agree that the following procedures and provisions
shall apply in the Action:

I.

DEFINITIONS
As used in this Agreement, these terms shall have the following meanings:
A.

“Party(ies)” means Debra Julian, Stephanie McKinney, Metropolitan Life

Insurance Company, and any other party that may be joined in the Action.
B.

“Non-Party(ies)” means any person or entity not a Party to the Action, which

produces documents or other information in response to a subpoena or other process in this
Action.
C.

“Material” is defined as documents, records, testimony, responses to discovery

or other tangible items, and any other information produced by a Party or Non-Party in discovery
in the Action, whether in hard copy or electronic form.
D.

“Confidential Material” is defined as Material containing sensitive non-public

business information, financial information, personal information, personnel information, trade
secrets, and/or other confidential or proprietary commercial, research, or development
information, within the meaning of Rule 26(c) of the Federal Rules of Civil Procedure.
Confidential Material may include, inter alia, all sensitive non-public materials containing
information related to:

financial or business plans, data or projections; proposed plans or

strategies; studies or analyses by internal or external experts; financial or tax data; competitive
analyses; personal information regarding personnel, including regarding employees, officers,
directors or partners; personal information regarding third-parties; information or documents
subject to confidentiality or non-disclosure agreements with third parties; Company processes,
procedures, standards, formulas, and other related information, including Company guidelines,
manuals, or software; or other commercially sensitive or proprietary information.

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E.

“Confidential Attorney Eyes Only Material” is defined as Confidential

Material that contains (i) highly sensitive confidential personal information or (ii) highly
sensitive confidential or proprietary business information, a trade secret or other commercial or
financial information that the Producing Party, in good faith, believes would result in
competitive or commercial harm in the market place if the Material were disseminated to persons
other than those specifically identified in Paragraph III.C below, and may include (without
limitation) confidential or proprietary insurance Company pricing guidelines or formulas,
internal renewal policies, philosophies, or pricing material, or other similarly sensitive trade
secret or proprietary information.
E.

The “Designator” is any Party or Non-Party who designates any Material

produced in this Action as “Confidential.”
F.

The “Producing Party” is any Party or Non-Party that produces Confidential

Material during the course of discovery in this Action.
G.

The “Receiving Party” is any Party or Non-Party that receives Confidential

Material during the course of discovery in this Action.
II.

DESIGNATION OF MATERIALS AS “CONFIDENTIAL”
A.

Any Party or Non-Party may designate Material produced during the course of

this Action as Confidential Material or Confidential Attorney Eyes Only Material if and only if
that Party or Non-Party believes in good faith that the Material satisfies the definitions of
Confidential Material or Confidential Attorney Eyes Only Material as set forth in Paragraphs I.D
and I.E.
B.

A Party or Non-Party may designate such Material by marking the word

“Confidential” or “Confidential Attorney Eyes Only” on the face of each document and each

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page so designated at the time it is produced or served, or, in the case of Confidential or
Confidential Attorney Eyes Only Material contained in or on media other than paper, by affixing
such a label to the information or by using its best efforts to identify the information as
Confidential or Confidential Attorney Eyes Only Material.
C.

If a Non-Party produces Material during the course of this Action that the

producing Non-Party did not designate as Confidential or Confidential Attorney Eyes Only
Material but that a Party believes in good faith satisfies either of those definitions as set forth in
Paragraphs I.D and I.E, the Party may (1) request that the Non-Party designate the Material as
Confidential or Confidential Attorney Eyes Only Material in the manner specified above; or (2)
the Party may itself so designate the Material, in which case the Party-Designator shall, within
ten (10) business days of notifying counsel, provide counsel for the Parties with new copies of
such Material bearing the appropriate “Confidential” or “Confidential Attorney Eyes Only”
legend. Upon receipt of the copy bearing the legend, counsel for the Parties and all other persons
who have received undesignated copies of the Material shall either return such Material to the
Non-Party who originally produced the Materials or destroy all such Materials, copies and other
reproductions thereof. The non-designating Party(ies) will have no responsibility or liability for
pre-notification dissemination or use of Confidential or Confidential Attorney Eyes Only
Material not properly designated at the time of the production.
D.

Documents may be produced for inspection before being designated as

“Confidential” or “Confidential Attorney Eyes Only.” Once specific documents have been
designated for copying, any documents containing Confidential or Confidential Attorney Eyes
Only Material may then be marked with the appropriate legend before being delivered to the
requesting Party. There will be no waiver of confidentiality by the inspection of Confidential or

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Confidential Attorney Eyes Only Material before such Material is copied and designated
pursuant to this procedure.
E.

Designation may also be by such other means as are agreed to, in writing, by the

Designator and the Party seeking disclosure.
F.

A Party shall not be obligated to challenge the propriety of the designation of

Material as “Confidential” or “Confidential Attorney Eyes Only” at the time made, and failure to
do so shall not preclude a subsequent challenge in this Action or any other action. If a Party
challenges a designation, it shall give notice to the Designator, and they shall attempt to resolve
any challenge in good faith on an expedited and informal basis. If the challenge cannot be
expeditiously and informally resolved, either the Designator or the challenging Party may apply
for a ruling from the Court. The Designator shall have the burden of establishing that the
Material at issue satisfies the applicable definition set forth in Paragraphs I.D and I.E. The
Material shall continue to be treated as Confidential or Confidential Attorney Eyes Only Material
until the Court orders otherwise.
G.

Any Designator may, at any time, unilaterally withdraw the “Confidential” or

“Confidential Attorney Eyes Only” designation of any Material designated by that Designator.
H.

The inadvertent production of Confidential or Confidential Attorney Eyes Only

Material without the appropriate designation affixed thereto will not constitute a waiver of
confidentiality with regard to that material. In the event that a Party or Non-Party inadvertently
produces Confidential or Confidential Attorney Eyes Only Material without the proper legend,
that Party or Non-Party shall notify counsel for the Parties of the omission within ten (10)
business days of discovering the inadvertent production. Further, within ten (10) business days
of notifying counsel, the notifying Party or Non-Party shall provide counsel for the Parties with

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new copies bearing the appropriate legend. Upon receipt of the copy bearing the legend, counsel
for the Parties and all other persons who have received undesignated copies of the Material shall
either return such Material to counsel for the Designator or destroy all such Materials, copies and
other reproductions thereof. The non-designating Party(ies) will have no responsibility or
liability for pre-notification dissemination or use of Confidential or Confidential Attorney Eyes
Only Material not properly designated at the time of the production.
H.

In the absence of an agreement on the record or in writing to the contrary, all

deposition testimony shall be treated as Confidential Material until the expiration of ten (10)
business days after receipt of the official transcript. All deposition transcripts or portions of
deposition transcripts in this Action (including exhibits) may be designated as Confidential or
Confidential Attorney Eyes Only Material by a statement to such effect on the record at any time
before the end of each day of deposition is concluded or by a statement in writing sent to counsel
of record within the aforementioned ten (10) business days after receipt of the transcript. During
depositions, any person, entity, Party, or Non-Party claiming confidentiality with respect to
Confidential or Confidential Attorney Eyes Only Material that is to be disclosed or upon which
questions may be based may exclude from the room any person who is not subject to this Order.
The Parties may modify this procedure for any particular deposition through written agreement
or agreement on the record at such deposition, without further Court order.
I.

In the case of Interrogatory responses or answers to Requests for Admission,

designations shall be made by placing the word “Confidential” or “Confidential Attorney Eyes
Only” on the specific pages containing answers or responses with Confidential or Confidential
Attorney Eyes Only Material.

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III.

USE AND HANDLING OF CONFIDENTIAL MATERIAL
A.

Confidential and Confidential Attorney Eyes Only Material shall be used only for

purposes of preparing for and litigating the Action (including appeals) and not for any other
purpose whatsoever, except on written consent of the Designator or by order of the Court.
B.

Confidential Material shall not be revealed or disclosed, directly or indirectly, in

any manner or in any form, to any person, entity, or judicial tribunal other than:
1.

The Parties themselves, and any current or former employees, officers,
members, or directors of MLIC, or any of their current or former
subsidiaries or affiliates, who are assisting in the conduct of this Action, to
the extent counsel of record determines in good faith that such disclosure
is necessary to provide assistance in connection with this Action;

2.

Counsel of record and any other counsel for the Parties in the Action,
including counsel for insurers for the claims involved in the Action,
members of their firms and associates, associate attorneys, paralegals,
clerical, and other employees or contractors of such counsel who are
assisting in the conduct and/or management of the Action;

3.

The Southern District of New York, the Second Circuit Court of Appeals,
or any other court that has jurisdiction over the Action, court personnel,
and court reporters of the aforementioned courts;

4.

Consultants, experts, and outside litigation support personnel, including
document management vendors, professional jury or trial consultants, and
other vendors retained by counsel for either Party to the Action (and the
employees and agents of those consultants, experts, and outside litigation
support personnel) to assist the Parties in the preparation and/or litigation
of the Action, including settlement of same;

5.

Any mediator retained by the Parties or appointed by the Court, and
employees of such mediator who are assisting in the conduct of the
mediation;

6.

The person, entity, Party or Non-Party that wrote, received or produced
the Confidential Material;

7.

Persons noticed for depositions or designated as trial witnesses, or those
whom counsel of record in good faith expect to testify at deposition or
trial, only to the extent reasonably necessary in preparing to testify;

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8.

9.

In the case of meeting or teleconference minutes designated as
Confidential Material, an attendee of the underlying meeting or participant
in the underlying teleconference;

10.

Stenographers, court reporters and videographers only to the extent
necessary to prepare records of sworn testimony in this action; and

11.

C.

In the case of a deposition, court or trial transcript designated or treated as
Confidential Material, the witness whose testimony is recorded in that
transcript;

Others, including (without limitation) any witness during the course of
his/her testimony in this action, provided that such person(s) execute the
Acknowledgment And Agreement To Be Bound By Agreement Protected
Order on Confidentiality in the form attached hereto as Exhibit A (the
“Acknowledgement”) prior to disclosure of any Confidential Material and
a copy of such signed Acknowledgment is retained by counsel for the
Party making such disclosures.

Confidential Attorney Eyes Only Material shall not be revealed or disclosed,

directly or indirectly, in any manner or in any form, to any person, entity, or judicial tribunal
other than those individuals falling within Paragraphs III.B.2; III.B.3; III.B.4; III.B.5; III.B.6;
III.B.8; III.B.9; and III.B.10. Confidential Attorney Eyes Only Material may be disclosed to
another person who is not already allowed access to such information under this Agreement only
if: (a) the person is testifying as a designee under Fed. R. Civ. P. 30(b)(6) on behalf of an
organization, and the Confidential Attorney Eyes Only Material was previously received or
authored by a director, officer, employee, or agent of the same organization; (b) the person is the
Designator; (c) the person is a director, officer, employee, consultant or agent for the Designator;
or (d) counsel for the Party designating the Material agrees in writing that such Material may be
disclosed to the person. Disclosure of Confidential Attorney Eyes Only Material pursuant to this
paragraph does not constitute a waiver of the confidential status of the Confidential Attorney
Eyes Only Material so disclosed.

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D.

Notwithstanding the preceding paragraph, it is understood that counsel of record

for a Party may give advice and opinions to his or her client(s) relating to the Action based on his
or her evaluation of Confidential Attorney Eyes Only Material, provided that such advice and
opinions shall not reveal the content of such Material, unless otherwise permitted by prior
written agreement of the parties or by Order of the Court.
E.

If Confidential or Confidential Attorney Eyes Only Material is to be disclosed

during a deposition or trial, the Acknowledgment may be made on the record and under oath,
rather than in writing.
F.

No person to whom Confidential or Confidential Attorney Eyes Only Material is

disclosed may disclose such Material to any person other than those persons described in
Paragraphs III.B and III.C, above. All persons who have access to Confidential or Confidential
Attorney Eyes Only Material at any time shall take all precautions necessary to prohibit access to
such Material other than as provided for herein.
G.

Any summaries or copies of Confidential or Confidential Attorney Eyes Only

Material shall bear the appropriate legend set forth in Paragraph II.B above, and shall be subject
to the terms of this Agreement to the same extent as the information or document from which
such summary or copy is made. Any party that creates a summary from material that is
subsequently designated as “Confidential” or “Confidential Attorney Eyes Only” pursuant to
Paragraph II.B above, shall upon receipt of the designation of such material as Confidential or
Confidential Attorney Eyes Only immediately mark such summaries with the appropriate legend
set forth in Paragraph II.B above and otherwise conform to this paragraph. The foregoing
paragraph does not apply to any Material that would be protected from disclosure pursuant to the
attorney-client privilege, the work product doctrine, or any other relevant privilege.

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H.

For applications and motions to the Court in connection with which a Party

submits Confidential or Confidential Attorney Eyes Only Material, all documents containing
such Material that are submitted to the Court shall be filed electronically and under seal pursuant
to the procedures provided in Judge Nathan’s Individual Rules of Practice for Civil Cases, Rule
4.A, except as otherwise modified by the Court. The Parties agree that the Court is ultimately
responsible for determining whether there is sufficient justification for the non-public filing of
Materials designated as Confidential or Confidential Attorney Eyes Only, and should the Court
deny a Party’s request to file a particular document under seal, it will be not be a breach of this
Agreement for a Party to publicly file such document.
I.

Notwithstanding the preceding paragraph, to avoid the unnecessary filing of

documents under seal, counsel for the Parties will discuss, in good faith, the need to file
Confidential Material under seal. If the parties agree that Confidential Material may be publicly
filed, such filing will not be a breach of this Agreement.
J.

Within forty-five (45) days following the closure of the above-captioned Action

in the District Court, if a Party has filed any document under seal with the Court, a Party may
move the Court to obtain the return of such previously-sealed or restricted document.
K.

Except as expressly provided for in in Paragraph III.L, within one-hundred and

twenty (120) days after final termination of the Action (including any related proceedings in the
District Court, Court of Appeals and/or U.S. Supreme Court), whether by final judgment, appeal
(if any) or otherwise, all persons and entities in possession of Confidential or Confidential
Attorney Eyes Only Material shall either destroy the information and all copies thereof, or return
the information and all copies thereof to the Designator or Producing Party, provided that the
Parties may retain in their possession (a) any privileged attorney work product that summarizes

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or references Confidential or Confidential Attorney Eyes Only Material, and (b) archived copies
of all pleadings, motion papers, written discovery responses, deposition transcripts and exhibits,
Court transcripts and exhibits, trial exhibits, and documents and other materials submitted to the
Court that contain Confidential or Confidential Attorney Eyes Only Materials. All Confidential
or Confidential Attorney Eyes Only Material in those records must be protected in conformity
with this Agreement. Counsel shall certify that all such Material and copies thereof have been
handled in accordance with this paragraph and by executing the Affidavit of Destruction,
attached hereto as Exhibit B. This paragraph shall not apply to persons identified in Paragraph
III.B.3.
L.

The Company may retain a copy of information obtained during the course of this

litigation (“Information”) only to the extent (i) required by law, regulation or legal process or (ii)
that are retained as part of an electronic backup, recovery or archival system, so long as such
Information is not accessible in the ordinary course of business and is not accessed except as
required by law, regulation or legal process.
IV.

GENERAL PROVISIONS
A.

This Agreement shall not be construed to restrict or limit the use, dissemination,

or disposition by the Designator of its own information that it designates as “Confidential” or
“Confidential Attorney Eyes Only.”
B.

Nothing contained in this Agreement shall restrict or limit any Party’s right to

present Confidential or Confidential Attorney Eyes Only Material to a court during a trial or
other hearing in the Action, and the Parties shall take reasonable steps to maintain the
confidentiality of such information at a hearing or at trial in such manner as the Court may direct.

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The use of Confidential or Confidential Attorney Eyes Only Material at trial shall be governed
by the pretrial order.
C.

If any court or governmental agency subpoenas or orders the production of any

Material designated hereunder as “Confidential” or “Confidential Attorney Eyes Only,” the Party
receiving such subpoena or order shall, within five (5) business days of the receipt of such
request and not less than five (5) days prior to the production of any such Material, notify the
Designator of such subpoena or order.
D.

This Agreement shall not apply to information or tangible items obtained by

means independent of production by a Party or Non-Party through discovery or other
proceedings in the Action. The restrictions set forth in this Agreement shall not apply to
information or tangible items which at or prior to disclosure in this Action are or were within
public knowledge, or which the Designator subsequently released into the public arena.
E.

Neither this Agreement, production or disclosure of Material under this

Agreement, nor designation or failure to designate Material under this Agreement, shall
constitute a waiver of the right of the Designator to maintain the confidentiality of that Material
in other contexts.
F.

The inadvertent production of any Material that would be protected from

disclosure pursuant to the attorney-client privilege, the work product doctrine or any other
relevant privilege or doctrine shall not itself constitute a waiver of the applicable privilege or
doctrine. Inadvertent production of privileged Material includes the mistaken production of
privileged Material that has been reviewed by the disclosing Party or Non-Party’s attorneys prior
to production. Upon receipt of notice of an inadvertent production, the Receiving Party shall
return or destroy the Material subject to a claimed privilege and any copies of it, including

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deletion of any versions of the privileged materials on any database the Receiving Party
maintains. The Receiving Party shall also take reasonable steps to retrieve the information if it
has been further disclosed, and make no use of the information contained in the privileged
materials. If the Receiving Party contests the claim of privilege, it shall notify the Producing
Party in writing. Within twenty-one (21) days after it reasonably appears that good faith efforts
to resolve the dispute have failed, the Producing Party may apply to the Court for an order that
such materials are protected from disclosure by privilege. In opposing any such application, the
Receiving Party may not, however, assert as a ground for such opposition the fact or
circumstances of the inadvertent production.

Any claimed privileged Material sequestered

pending determination by the Court as to whether it is privileged must not be used or disclosed
until the privilege issue is resolved, and thereafter shall be treated in accordance with the Court’s
determination of the issue.
G.

This Agreement may be modified or amended by agreement of the Parties hereto

with the approval of the Court. To the extent that the Parties fail to agree on a modification
proposed by any Party, nothing contained herein shall be deemed to preclude any Party from
moving the Court, for good cause shown, for a ruling that modifies this Agreement in any
respect.
H.

Nothing in this Agreement shall prevent any person from seeking at any time to

impose additional restrictions beyond those provided in this Agreement.
J.

Any invalidity, in whole or in part, of any provision of this Agreement shall not

affect the validity of any other provision of this Agreement.

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K.

This Agreement shall survive and continue to be binding after the conclusion of

the Action, and the District Court shall retain jurisdiction to resolve any dispute concerning the
use of information disclosed pursuant to or in violation of this Agreement.
STIPULATED AND AGREED TO THIS DAY BY:
/s/ Michael D. Palmer

/s/ Melissa C. Rodriguez

SANFORD HEISLER SHARP, LLP
Michael D. Palmer
Jeremy Heisler
Andrew Melzer
David Tracey
1350 Avenue of the Americas, Floor 31
New York, NY 10019
[e-mail]
[e-mail]
[e-mail]
[e-mail]

MORGAN, LEWIS & BOCKIUS LLP
Christopher A. Parlo
Melissa C. Rodriguez
101 Park Avenue
New York, NY 10178
T: 212.309.6000
F: 212.309.6001
[e-mail]
[e-mail]
Counsel for Defendants Metropolitan Life
Insurance Company

KRAKOWER DICHIARA LLC
Michael R. DiChiara
One Depot Square
77 Market Street, Suite 2
Park Ridge, NJ 07656
[e-mail]
Counsel for Plaintiffs
SO ORDERED.

_______________________________
BARBARA MOSES
United States Magistrate Judge
3/10/2020
Dated: ________________
New York, New York

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EXHIBIT A
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
AMENDED CONFIDENTIALITY AGREEMENT
I hereby certify my understanding that material is being provided to me pursuant to the
provisions, conditions, and restrictions of the Amended Confidentiality Agreement in the case
captioned Debra Julian & Stephanie McKinney v. Metropolitan Life Insurance Co., No. 1:17-cv00957-AJN, and that I have been given a copy of the Amended Confidentiality Agreement and
agree to be bound by its provisions. I understand and agree that all Confidential Material I may
be shown, including copies thereof and any notes and transcriptions made therefrom and
information contained therein, are to be used only for the purposes permitted by the
Confidentiality Agreement. I also understand and agree that all material I am shown shall be
returned or destroyed in the manner provided in the Amended Confidentiality Agreement. I
agree to resolve all disputes regarding the provisions, conditions, or restrictions of the Amended
Confidentiality Agreement according to the provisions thereof.

______________________________
Signature
______________________________
Name*
______________________________
Address*
______________________________
______________________________
______________________________
Date*
*This information must be printed or typed.

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EXHIBIT B
AFFIDAVIT OF DESTRUCTION

I, _____________________, declare and state as follows:
1.

I am _________________ (position) at _________________________ (firm) counsel for

____________________(party/non-party).
2.

On _______________, 202_, on behalf of ______ (party/non-party), I destroyed or

returned all Confidential and Confidential Attorney Eyes Only Materials pursuant to Paragraph
III.K of the Amended Confidentiality Agreement entered on March 6, 2020 in the case captioned
Debra Julian & Stephanie McKinney v. Metropolitan Life Insurance Co., No. 1:17-cv-00957AJN (S.D.N.Y.).

I declare under penalty of perjury that the foregoing is true and correct to my knowledge.

Executed this _______ day of _______________, 202_ in _____________ (city), ___
(state).

_______________________________________
(name)

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