Ferguson et al v. Ruane Cuniff & Goldfarb Inc. et al

Filing 119

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...(As further set forth in this Order.) Notwithstanding the designation of material as "Confidential" in discovery, there is no presumption that such Confidential Discovery Material will be filed with the Court under seal. The parties shall follow Judge Moses's Individual Practices with respect to pretrial requests for filing under seal. (Signed by Magistrate Judge Barbara C. Moses on 1/31/2020) (cf)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL L. FERGUSON, et al.,

DATEF -ED: -..--~/2.JJ.120
-IL - [/3/ _ '_ _
r 1

Plaintiffs,

l 7-CV-06685 (ALC) (BCM)
-againstRUANE CUNNIFF & GOLDFARB INC., et al. ,

STIPULATED PROTECTIVE
ORDER

Defendants.

BARBARA MOSES, United States Magistrate Judge.
The Court having found that good cause exists for issuance of an appropriately tailored
confidentiality order governing the pre-trial phase of this action, and the parties having stipulated
to the following provisions, it is hereby ORDERED that any person subject to this Order including without limitation the parties to this action, their attorneys, representatives, agents,
experts and consultants, acting as such, all third parties providing discovery in this action, and all
other interested persons with actual or constructive notice of this Order shall adhere to the
following terms, upon pain of contempt:

Discovery Materials May Be Designated as Confidential
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" pursuant to the terms
of this Order shall not disclose such Confidential Discovery Material to anyone else
except as expressly permitted hereunder.

2.

The person producing Discovery Material may designate as "Confidential" any
portion thereof that contains non-public business, commercial, financial, or
personal information, the public disclosure of which is either restricted by law or

would likely, in the good faith opinion of the producing person, seriously harm the
producing person' s business, commercial, financial, or personal interests or cause the
producing person to violate hi s, her, or its privacy or confidentiality obligations to others.
Where the confidential portion is reasonably separable from the non- confidential portion,
via redaction or otherwise, only the confidential portion shall be so designated.

3.

With respect to the confidential 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" by stamping or otherwise clearly
marking as "Confidential" the document or protected portion in a manner that will
not interfere with legibility or audibility. Deposition testimony may be designated
as "Confidential" either on the record during the deposition or in writing within five
(5) business days of receipt of the transcript. If so designated, the final transcript of
the designated testimony shall be bound in a separate volume and marked
"Confidential Information Governed by Protective Order" by the reporter.

4.

If at any time prior to the trial of this action, a producing person realizes that some
portion of Discovery Material that that person previously produced without
limitation should be designated as "Confidential," the producing person may so
designate that portion by promptly notifying all parties in writing. Such designated
portion of the Discovery Material will thereafter be treated as Confidential under
the terms of this Order. In addition, the producing person shall provide each other
party with replacement versions of such Discovery Material that bears the
"Confidential" designation within two (2) business days of providing such notice.

2

Who May Receive Confidential Materials
5.

No person subject to this Order, other than the producing person, shall disclose any
Confidential Discovery Material to any other person whomsoever, except to:
(a)

the parties to this action;

(b)

counsel retained specifically for this action, including any paralegal, clerical
or other assistant employed by such counsel and assigned specifically to
work on this action;

(c)

as to any document, its author, its addressee, and any other person shown
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 hereto;

(e)

any person retained by a party to serve as an expert witness or consultant 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 hereto;

CO

stenographers and video technicians engaged to transcribe or record
depositions conducted in this action;

(g)

independent photocopying, graphic production services, or other litigation
support services employed by the parties or their counsel to assist in this
action, including computer service personnel performing duties in relation to
a computerized litigation system;

(h)

the Court and its staff; and

3

(i)

any other person whom the producing person, or other person designating
the Discovery Material "Confidential," agrees in writing may have access to
such Confidential Discovery Material.

6.

Prior to the disclosure of any Confidential Discovery Material to any person referred
to in subparagraphs S(d) or 5(e) 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 hereto, stating that that person has read this Order and agrees to be
bound by its terms . 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.

Filing Confidential Materials in this Action
7.

Any person who either objects to any designation of confidentiality, or who, by
contrast, requests still further limits on disclosure (such as "attorneys' eyes only,"
reserved for extraordinary circumstances), may at any time prior to the trial of this
action serve upon the designating person and all other parties a written notice stating
with particularity the grounds of the objection or request. If agreement cannot be
reached promptly, counsel for all affected persons shall request a joint telephone call
with the Court to obtain a ruling.

8.

Notwithstanding the designation of material as "Confidential" in discovery, there is
no presumption that such Confidential Discovery Material will be filed with the Cour~
under seal. The parties shall follow Pa:rts I.B~

Moses's Individua~

Practices with respect to pretrial requests for filing under seal.
9.

All persons are hereby placed on notice that the Court is unlikely to seal or otherwise
4

afford confidential treatment to any Discovery Material introduced in evidence at
trial, even if such material has previously designated as Confidential or sealed during
pretrial proceedings.
10.

Each person who has access to Confidential Discovery Material shall take all due
precautions to prevent the unauthorized or inadvertent disclosure of such material.

Inadvertent Disclosure of Privileged Materials
11 .

If, in connection with this litigation, and despite having taken reasonable steps to

prevent the disclosure of information that it claims is subject to a claim of attorneyclient privilege or attorney work product, a producing person inadvertently discloses
information subject to a claim of attorney-client privilege or attorney work product
protection ("Inadvertently Disclosed Information"), such disclosure, in itself, 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 person makes a claim of inadvertent disclosure, all receiving persons

shall, within five (5) business days, return or destroy all copies of the Inadvertently
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 person shall produce a
privilege log with respect to the Inadvertently Disclosed Information

14.

If a receiving person thereafter moves the Court for an order compelling production

of the Inadvertently Disclosed Information, that motion shall be filed under seal, and
shall not assert as a ground for entering such an order the mere fact of the inadvertent
5

production . The disclosing person 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.

Termination of the Litigation
15.

This Protective Order shall survive the termination of the litigation. Within 30 days
of the final disposition of this action, all Confidential Discovery Material and all
copies thereof, shall be promptly returned to the producing person, or, upon
permission of the producing person, destroyed.

16.

During the pendency of this case only, 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.

SO STIPULATED.
For Plaintiffs:

For Defendants :

Signed: s/ Laurie Rubinow
Name: Laurie Rubinow
Dated: January 30, 2020

Signed: s/ Robert J. Ward
Name: Robert J. Ward
Dated: January 30, 2020

James E. Miller
Laurie Rubinow
SHEPHERD, FINKELMAN,
MILLER & SHAH, LLP
65 Main Street
Chester, CT 06412
Telephone: [phone]
Email : jmiller@ sfmslaw.com
Email: lrubinow@sfmslaw .com

Robert J. Ward
Frank W. Olander
SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, NY 10022
Telephone: [phone]
Email: robert. [e-mail]
Email : [e-mail]

Attorneys for Ruane, Cunniff &
Goldfarb Inc.

Attorneys for the Plaintiffs

6

Signed: s/ Lewis R. Clayton
Name: Lewis R. Clayton
Dated: January 30, 2020
Lewis R. Clayton
Jeffrey J. Recher
Joshua D. Kaye
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON, LLP
1285 A venue of the Americas
New York, NY 10019
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

Attorneys for the DST Parties

Dated: _

__._+='--'-_ _ _ _ , 20W
\\~ ~

United States Magistrate Judge

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Case 1: 17-cv-06685-ALC-BCM Document 118 Filed 01/30/20 Page 8 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL L. FERGUSON, et al.,
Plaintiffs,
-against-

17-CV-06685 (ALC) (BCM)

NON-DISCLOSURE AGREEMENT

RUANE CUNNIFF & GOLDFARB INC., et al.,
Defendants.

!, _____________ [print name], 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. I agree that I will not disclose such 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
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.
Dated: _ _ _ _ _ _ _ _ _ __
[Signature]