DoubleLine Capital LP et al v. Odebrecht Finance, Ltd et al

Filing 156

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (As further set forth in this Order.) (Signed by Magistrate Judge Barbara C. Moses on 12/8/2020) (cf)

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 1 of 11

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
DOUBLELINE CAPITAL LP, DOUBLELINE
INCOME SOLUTIONS FUND, AND
DOUBLELINE FUNDS TRUST (ON BEHALF OF
ITS: 1) DOUBLELINE CORE FIXED INCOME
FUND SERIES; 2) DOUBLELINE EMERGING
MARKETS FIXED INCOME FUND SERIES; AND
3) DOUBLELINE SHILLER ENHANCED CAPE®
SERIES),
Plaintiffs,
-againstCONSTRUTORA NORBERTO ODEBRECHT, S.A.,
ODEBRECHT ENGENHARIA E CONSTRUÇÃO
S.A. AND ODEBRECHT S.A.,

12/8/2020

1:17-cv-4576-GHW-BCM
STIPULATED
CONFIDENTIALITY
AGREEMENT AND
PROTECTIVE ORDER

Defendants.

BARBARA MOSES, United States Magistrate Judge:
WHEREAS, all of the parties to this action (collectively, the “Parties” and each
individually, a “Party”) request that this Court issue a protective order pursuant to Federal
Rule of Civil Procedure 26(c) to protect the confidentiality of nonpublic and competitively
sensitive information that they may need to disclose in connection with discovery in this
action;
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds that good cause exists for issuance of an appropriately
tailored confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that the Parties to this action, their respective officers,
agents, servants, employees, and attorneys, any other person in active concert or participation
1

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 2 of 11

with any of the foregoing, and all other persons with actual notice of this Order will adhere to
the following terms, upon pain of contempt:
1.

With respect to Discovery Material (i.e., information of any kind produced or

disclosed in the course of discovery in this action), that a person has designated as “Confidential”
or “Highly Confidential” pursuant to this Order, no person subject to this Order may disclose
such Confidential or Highly Confidential Discovery Material to anyone else except as expressly
permitted hereunder:
2.

The Party or person producing or disclosing Discovery Material (each,

“Producing Party”) may designate as Confidential only the portion of such material that it
reasonably and in good faith believes consists of:
a. previously non-disclosed financial information (including without limitation
profitability reports or estimates, percentage fees, design fees, royalty rates,
minimum guarantee payments, sales reports, and sale margins);
b. previously non-disclosed material relating to ownership or control of any nonpublic company;
c. previously non-disclosed 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 information given confidential status by this Court after the
date of this Order.
3.

Additionally, the Producing Party may designate as Highly Confidential any

portion of Discovery Material that it reasonably and in good faith believes (a) qualifies as
Confidential as set forth in paragraph 2 hereof, and (b) is of such a confidential nature that

2

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 3 of 11

disclosure to the Parties to this action would cause irreparable business harm or detriment to the
Producing Party, including if the Producing Party reasonably believes non-designation would
contravene applicable law.
4.

With respect to the Confidential or Highly Confidential portion of any Discovery

Material other than deposition transcripts and exhibits, the Producing Party or its counsel may
designate such portion as “Confidential” or “Highly Confidential” respectively by: (a) stamping
or otherwise clearly marking as “Confidential” or “Highly Confidential” the protected portion in
a manner that will not interfere with legibility or audibility; and (b) producing for future public
use another copy of said Discovery Material with the confidential or highly confidential
information redacted.
5.

A Producing Party or its counsel may designate deposition exhibits or portions of

deposition transcripts as Confidential or Highly Confidential Discovery Material 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 a deposition has concluded,
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. During the 30-day period following a
deposition, all Parties will treat the entire deposition transcript as if it had been designated
Confidential or Highly Confidential.

3

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 4 of 11

6.

If at any time before the termination of this action a Producing Party realizes that

it should have designated as Confidential or Highly Confidential some portion(s) of Discovery
Material that it previously produced without limitation, the Producing Party may so designate
such material by notifying all Parties in writing. Thereafter, all persons subject to this Order will
treat such designated portion(s) of the Discovery Material as Confidential or Highly
Confidential. In addition, the Producing Party shall provide each other Party with replacement
versions of such Discovery Material that bears the “Confidential” or “Highly Confidential”
designation within two business days of providing such notice.
7.

Nothing contained in this Order will be construed as: (a) a waiver by a Party or

person of its right to object to any discovery request; (b) a waiver of any privilege or protection;
or (c) a ruling regarding the admissibility at trial of any document, testimony, or other evidence.
8.

Where a Producing Party has designated Discovery Material as Confidential,

other persons subject to this Order may disclose such information only to the following persons:
a. the Parties to this action, their insurers, and counsel to their insurers in connection
with the prosecution, defense or settlement of this action;
b. the Parties’ in-house counsel, solely to the extent reasonably necessary for such
in-house counsel to assist in the prosecution, defense or settlement of this action
and provided that such in-house counsel has first executed a Non-Disclosure
Agreement in the form annexed as Exhibit A hereto;
c. counsel retained specifically for this action, including any paralegal, clerical, or
other assistant that such outside counsel employs and assigns to this action;
d. outside vendors or service providers (such as copy-service providers and
document-management consultants) that counsel hire and assign to this action;

4

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 5 of 11

e. any mediator or arbitrator that the Parties engage in this action or that this Court
appoints, provided such person has first executed a Non-Disclosure Agreement in
the form annexed as Exhibit A hereto;
f. as to any document, its author, its addressee, and any other person indicated on
the face of the document as having received a copy;
g. 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 NonDisclosure Agreement in the form annexed as Exhibit A hereto;
h. any person a Party retains 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 Exhibit A
hereto;
i.

stenographers engaged to transcribe depositions the Parties conduct in this action;
and

j.

this Court, including any appellate court, its support personnel, and court
reporters.

9.

Where a Producing Party has designated Discovery Material as Highly

Confidential, other persons subject to this Order may disclose such information only to the
persons listed in subparagraphs 8(b), (c), (d), (e), (f), (g), (h), (i) and (j).
10.

Before disclosing any Confidential or Highly Confidential Discovery Material to

any person referred to in subparagraphs 8(b), (e), (g), or (h) above, counsel must provide a copy
of this Order to such person, who must sign a Non-Disclosure Agreement in the form annexed as
Exhibit A hereto stating that he or she has read this Order and agrees to be bound by its terms.

5

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 6 of 11

Said counsel must retain each signed Non-Disclosure Agreement, hold it in escrow, and produce
it to opposing counsel either before such person is permitted to testify (at deposition or trial) or at
the conclusion of the case, whichever comes first.
11.

This Order binds the Parties and certain others to treat as Confidential any

Discovery Materials so classified as Confidential or Highly Confidential. The Court has not,
however, made any finding regarding the confidentiality of any Discovery Materials, and retains
full discretion to determine whether to afford confidential treatment to any Discovery Material
designated as Confidential or Highly Confidential hereunder. All persons are placed on notice
that the Court is unlikely to seal or otherwise afford confidential treatment to any Discovery
Material introduced into evidence at trial, even if such material has previously been sealed or
designated as Confidential or Highly Confidential.
12.

In filing Confidential or Highly Confidential Discovery Material with this Court,

or filing portions of any pleadings, motions, or other papers that disclose such Confidential or
Highly Confidential Discovery Material (“Confidential Court Submission”), the Parties shall
comply with the applicable Individual Rules of Practice issued by the Court that will consider the
Confidential Court Submission at issue. The parties should be aware that the Court will unseal
documents if it is unable to make “specific, on the record findings . . . demonstrating that closure
is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006).
13.

Any Party who objects to any designation of confidentiality may at any time

before the trial of this action serve upon counsel for the Producing Party a written notice stating
with particularity the grounds of the objection. If the Parties cannot reach agreement promptly,

6

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 7 of 11

counsel for all affected Parties will address their dispute to this Court in accordance with
paragraph 2(C) of this Court’s Individual Practices.
14.

Any Party who requests additional limits on disclosure (such as “attorneys’ eyes

only” in extraordinary circumstances), may at any time before the trial of this action serve upon
counsel for the recipient Parties a written notice stating with particularity the grounds of the
request. If the Parties cannot reach agreement promptly, counsel for all affected Parties will
address their dispute to this Court in accordance with Rule 2(B) of this Court’s Individual Rules
of Practice in Civil Cases.
15.

Nothing in this Order will prevent any Party from producing any Confidential or

Highly Confidential Discovery Material in its possession in response to a lawful subpoena or
other compulsory process, or if required to produce by law or by any government agency having
jurisdiction, provided that such Party gives written notice to the Producing Party as soon as
reasonably possible, and if permitted by the time allowed under the request, at least 10 days
before any disclosure. Upon receiving such notice, the Producing Party will bear the burden to
oppose compliance with the subpoena, other compulsory process, or other legal notice if the
Producing Party deems it appropriate to do so. For the avoidance of doubt, nothing contained in
this Order will affect or restrict the rights of any Party with respect to its own documents or
information produced in this action.
16.

Each person who has access to Discovery Material designated as Confidential or

Highly Confidential pursuant to this Order must take all due precautions to prevent the
unauthorized or inadvertent disclosure of such material. Within 60 days of the final disposition
of this action—including all appeals— all recipients of Confidential or Highly Confidential
Discovery Material must either return it—including all copies thereof— to the Producing Party,

7

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 8 of 11

or, upon permission of the Producing Party, destroy such material— including all copies thereof.
In either event, by the 60-day deadline, the recipient must certify its return or destruction by
submitting a written certification to the Producing Party that affirms that it has not retained any
copies, abstracts, compilations, summaries, or other forms of reproducing or capturing any of the
Confidential or Highly Confidential Discovery Material. Notwithstanding this provision, the
attorneys that the Parties have specifically retained for this action may retain an archival copy of
all pleadings, motion papers, transcripts, expert reports, legal memoranda, correspondence, or
attorney work product, even if such materials contain Confidential or Highly Confidential
Discovery Material. Any such archival copies that contain or constitute Confidential or Highly
Confidential Discovery Material remain subject to this Order.
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
Discovery Material is produced or disclosed.

8

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 9 of 11

18.

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.
SO STIPULATED AND AGREED.
Pursuant to section 8.5(b) of the Electronic Case Filing Rules & Instructions for the United
States District Court for the Southern District of New York, the use of conformed electronic
signatures is with the consent of all signatories to this filing.
Dated: December 7, 2020
/s/ Karl P. Barth
Karl P. Barth
HAGENS BERMAN SOBOL
SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, Washington 98101

/s/ Luke A. Barefoot
Victor L. Hou
Luke A. Barefoot
Thomas S. Kessler
CLEARY GOTTLIEB STEEN &
HAMILTON LLP
One Liberty Plaza
New York, New York 10006

Counsel for Plaintiffs

Counsel for Defendants

SO ORDERED.

Dated: December 8, 2020
New York, New York

BARBARA MOSES
United States Magistrate Judge

9

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 10 of 11

Exhibit A
to Stipulated Confidentiality
Agreement and Protective Order
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
DOUBLELINE CAPITAL LP, DOUBLELINE
INCOME SOLUTIONS FUND, AND
DOUBLELINE FUNDS TRUST (ON BEHALF OF
ITS: 1) DOUBLELINE CORE FIXED INCOME
FUND SERIES; 2) DOUBLELINE EMERGING
MARKETS FIXED INCOME FUND SERIES; AND
3) DOUBLELINE SHILLER ENHANCED CAPE®
SERIES),
Plaintiffs,

1:17-cv-4576-GHW-BCM
NON-DISCLOSURE
AGREEMENT

-againstCONSTRUTORA NORBERTO ODEBRECHT, S.A.,
ODEBRECHT ENGENHARIA E CONSTRUÇÃO
S.A. AND ODEBRECHT S.A.,
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 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 return all
discovery information 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

1

Case 1:17-cv-04576-GHW-BCM Document 156 Filed 12/08/20 Page 11 of 11

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.

______________________________
Name:
Date:

2