Alix v. McKinsey & Co., Inc. et al

Filing 297

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...This stipulation binds the parties to treat as confidential the documents so classified. This Court, however, has not review ed the documents referenced herein; therefore, by so ordering this stipulation, the Court makes no finding as to whether the documents are confidential. That finding will be made, if ever, upon a document-by-document review pursuant to the procedures set forth in the Court's Individual Rules and Practices and subject to the presumption in favor of public access to "judicial documents." See generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). To that e nd, the Court does not "so order" any provision to the extent that it purports to authorize the parties to file documents under seal without a prior court order. See New York ex rel. Khurana v. Spherion Corp., No. 15-CV-6605 (JMF), 2019 WL 3294170 (S.D.N.Y. July 19, 2019). SO ORDERED. (Signed by Judge Jesse M. Furman on 1/31/24) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JAY ALIX,
Plaintiff,

No. 18-cv-04141 (JMF)

-againstMCKINSEY & CO., INC.; MCKINSEY
HOLDINGS, INC.; MCKINSEY &
COMPANY INC. UNITED STATES;
MCKINSEY RECOVERY &
TRANSFORMATION SERVICES U.S.,
LLC; DOMINIC BARTON; KEVIN
CARMODY; JON GARCIA; SETH
GOLDSTROM; MARK HOJNACKI;
VIRGINIA MOLINO; ALISON
PROSHAN; ROBERT STERNFELS; and
JARED YERIAN,
Defendants.
SETH GOLDSTROM and KEVIN CARMODY,
Counterclaim Plaintiffs,
v.
JAY ALIX and ALIXPARTNERS, LLP,
Counterclaim Defendants.
STIPULATED AND [PROPOSED] PROTECTIVE ORDER
The parties (collectively, the “Parties” and each individually, a “Party”) in the abovecaptioned actions (the “Proceeding”) hereby stipulate and request that this Court issue a
protective order pursuant to Federal Rule of Civil Procedure 26(c) to protect the confidentiality
of nonpublic and sensitive information disclosed in connection with discovery in this
Proceeding.

Any person subject to this Order—including, without limitation, the Parties, any Party’s
representatives, agents, experts, or consultants, and all non-parties providing discovery in the
Proceeding—shall adhere to the provisions of this Order.
A.

Scope

1.

This Stipulated Protective Order (“Order” or “Protective Order”) applies to and

governs all information, testimony, documents, and all other matter produced or furnished in the
Proceeding that is designated, by a Party or by a non-party to this Proceeding (in each case, the
“Designating Party”) as “Confidential Material” or “Highly Confidential Material” (as defined
below) (Confidential Material and Highly Confidential Material together, “Designated Material”)
pursuant to this Order, including without limitation, deposition testimony (whether based upon
oral examination or written questions); answers to interrogatories; responses to requests for
admission; and documents, information, and things produced in response to requests for
production (including documents, information, and things produced to a receiving Party (in each
case, a “Receiving Party”) for inspection, whether in the form of originals or copies), and all
other discovery taken pursuant to the Federal Rules of Civil Procedure (collectively referred to as
“Discovery Material”), as well as pleadings, briefs, memoranda, testimony adduced at trial,
materials introduced into evidence, and all other information produced or furnished by or on
behalf of any Party or non-party that meets the definition of Confidential Material or Highly
Confidential Material and has been so designated.
2.

Nothing in this Order precludes any Party or non-party from seeking relief from

the Court with regard to the production of documents or information.
3.

This Order does not alter any confidentiality obligations that any Party or non-

party may have at law or under another agreement.

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4.

Nothing in this Order shall be construed as an agreement or acknowledgement by

the Receiving Party that any Designated Material constitutes a trade secret or is, in fact,
confidential or highly confidential.
5.

Any Personally Identifying Information (“PII”) (e.g., social security numbers,

financial account numbers, passwords, and information that may be used for identity theft)
exchanged in discovery in this Proceeding shall be maintained by the Receiving Party in a
manner that is secure and confidential.
B.

Designated Material

1.

A Designating Party may designate Discovery Material as “Confidential

Material” or “Highly Confidential Material” in accordance with the provisions set forth below.
2.

Confidential Material: A Designating Party may designate Discovery Material as

“Confidential Material” if the Designating Party reasonably believes in good faith that such
Discovery Material constitutes or contains non-public proprietary or confidential technical,
business, or financial information, or any other information subject to a legally protected right of
privacy or otherwise of a nature that is protected under Federal Rule of Civil Procedure 26(c).
Confidential Material does not include information that (a) at the time of the disclosure
hereunder is available to the public; (b) after disclosure hereunder becomes available to the
public through no act, or failure to act, by the Receiving Party; or (c) the Receiving Party can
show (i) was already known to the Receiving Party through a non-confidential disclosure; (ii)
was independently developed by the Receiving Party; or (iii) was received by the Receiving
Party, after the time of disclosure hereunder, from a non-party having the right to make such a
disclosure.
3.

Unless otherwise provided in this Order or subsequent orders by the Court,

Confidential Material shall not be disclosed or shown to anyone other than:
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a.

the Parties, including (and solely to the extent such persons have a need to
know such Confidential Material for the purpose of assisting the Parties in
connection with the Proceeding), in house counsel for the Parties and
members, managers, partners, directors, officers, or employees of the
Parties;

b.

outside counsel of record for the Parties;

c.

persons employed by outside counsel of record for the Parties who are
charged with assisting in this Proceeding and to whom it is necessary that
Confidential Material be shown for purposes of assisting in such work;

d.

outside representatives of the Parties who have a legitimate need to review
such material in connection with the Proceeding and who shall, prior to
reviewing such material, execute an undertaking in the form of Exhibit A
to this Order (the “Non-Disclosure Agreement”); each such NonDisclosure Agreement shall be maintained by counsel for the Party
represented by such outside representative;

e.

the Court and persons employed by the Court;

f.

persons who are identified by the relevant document as the author or
recipient of such document in the ordinary course of business (or, in the
case of meeting minutes, an attendee of the meeting);

g.

subject to the provisions of Paragraph C.2., any witness in the course of
depositions, examinations, evidentiary hearings, or trial, or preparation for
depositions, examinations, evidentiary hearings, or trial in this matter
(provided that upon completion of the review, the documents shall be
returned to counsel for the supplying party, other than, in the case of
disclosure in the course of depositions or trial, copies provided to the court
reporter as marked exhibits);

h.

outside experts or consultants retained by the Parties or by outside counsel
of record for the Parties in connection with the Proceeding, provided that
no disclosure shall occur until each expert or consultant has agreed to be
bound by the terms of this Order, and has so indicated by executing the
Non-Disclosure Agreement at Exhibit A; each such Non-Disclosure
Agreement shall be maintained by counsel for the Party that retained the
consultant or expert;

i.

independent copying services and other independent litigation support
services retained by the Parties or by outside counsel of record for the
Parties in connection with the Proceeding, provided that no disclosure
shall occur until any such service agrees to be bound by the terms of this
Order, and has so indicated by executing the Non-Disclosure Agreement
at Exhibit A; each such Non-Disclosure Agreement shall be maintained by
counsel for the Party retaining such services; and
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j.

4.

persons who, in addition to those identified above, are permitted access by
order of the Court or upon stipulation of the relevant Designating Party of
the Confidential Material, after notice to all Parties and an opportunity has
been had to object and after such persons have agreed to be bound by the
terms of this Order, and have so indicated by executing the NonDisclosure Agreement at Exhibit A; each such Non-Disclosure Agreement
shall be maintained by counsel for the Party proposing the disclosure or, if
disclosure is ordered by the Court sua sponte, then by counsel for the
Party that produced the disclosed information.

Highly Confidential Material: A Designating Party may designate Discovery

Material as “Highly Confidential,” based on the good faith belief that such Discovery Material
(i) meets the definition of “Confidential Material” set forth above in Paragraph B.2; and (ii)
constitutes or reflects information that is, at the time of production, of such a nature that a risk of
competitive injury or other harm to a Party would be created if such Discovery Material were
disclosed to persons other than those identified in Paragraph B.5 of this Order, including but not
limited to confidential board-level or competition materials that reflect trade secrets, or sensitive
personal information (including PII).
5.

Unless otherwise provided in this or subsequent Orders by the Court, Highly

Confidential Material shall not be disclosed or shown to anyone other than:
a.

outside counsel of record for the Parties;

b.

persons employed by outside counsel of record for the Parties who are
charged with assisting in this Proceeding and to whom it is necessary that
Highly Confidential Material be shown for purposes of assisting in such
work;

c.

the Court and persons employed by the Court;

d.

persons who are identified by the relevant document as the author or
recipient of such document in the ordinary course of business (or, in the
case of meeting minutes, an attendee of the meeting);

e.

subject to the provisions of Paragraph C.2., any witness during the course
of a deposition, examination, evidentiary hearing, or trial, (i) as the author
or recipient of such document in the ordinary course of business (or, in the
case of meeting minutes, an attendee of the meeting), or (ii) if the witness

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is not an author or recipient, (x) where counsel questioning the witness
reasonably and in good faith believes that questioning the witness
regarding the document is necessary, (y) where doing so would not cause
personal or competitive harm, and (z) the witness shall not be permitted to
possess or retain copies of such document;

6.

f.

outside experts or consultants retained by the Parties or by outside counsel
of record for the Parties in connection with the Proceeding, provided that
no disclosure shall occur until each expert or consultant has agreed to be
bound by the terms of this Order, and has so indicated by executing the
Non-Disclosure Agreement at Exhibit A; each such Non-Disclosure
Agreement shall be maintained by counsel for the Party that retained the
consultant or expert;

g.

independent copying services and other independent litigation support
services retained by the Parties or by outside counsel of record for the
Parties in connection with the Proceeding, provided that no disclosure
shall occur until any such service agrees to be bound by the terms of this
Order, and has so indicated by executing the Non-Disclosure Agreement
at Exhibit A; each such Non-Disclosure Agreement shall be maintained by
counsel for the Party retaining such services;

h.

Any natural person who is a party to this action, if such person is
specifically referenced or identified by name in the relevant document,
and provided that only that portion of the Highly Confidential Material
that specifically references or identifies by name that specific natural
person may be disclosed to him or her, along with enough surrounding
material so as to be reasonably necessary to understand context; and

i.

persons who, in addition to those identified above, are permitted access by
order of the Court or upon stipulation of the Designating Party, after
notice to all Parties and an opportunity has been had to object and after
such persons have agreed to be bound by the terms of this Order, and have
so indicated by executing the Non-Disclosure Agreement at Exhibit A;
each such Non-Disclosure Agreement shall be maintained by counsel for
the Party proposing the disclosure or, if disclosure is ordered by the Court
sua sponte, then by counsel for the Party that produced the disclosed
information.

Counsel for each party shall maintain copies of all Non-Disclosure Agreements

(Exhibit A) in accordance with this Order. Counsel shall, upon request, make a representation
that all persons required to execute Non-Disclosure Agreements who have had access to
Designated Material have executed a Non-Disclosure Agreement.

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7.

Except as provided by Section F hereof or as agreed to in writing by the relevant

Designating Party, Designated Material shall be used by Receiving Parties solely for the
prosecution and/or defense of the Proceeding (including appeals) and only as provided in this
Order. Designated Material shall not be used or employed for the purpose of any other action,
use, or proceeding, or for any commercial, business, or other purpose whatsoever, unless (i)
agreed to in a signed writing between the Designating Party and the Receiving Party; (ii) as
provided by Section F hereof; or (iii) by further order of a court of competent jurisdiction.
8.

Notwithstanding anything to the contrary in the foregoing paragraphs, every Party

may use without restriction:

9.

a.

its own documents and/or information; and

b.

documents and/or information developed or obtained by a Receiving Party
independently of discovery in this Proceeding, provided such documents
were not obtained in violation of any other confidentiality agreement or
obligation, and irrespective of whether such document or information has
been designated as Designated Material in this Proceeding.

Sealing of Designated Material Filed with or Submitted to the Court: The Parties

acknowledge that this Protective Order does not itself entitle them to file Designated Material
under seal with this Court. In the event that counsel for any Party or Designating Party intends
to file with, or submit to, the Court any Designated Material or papers containing or referencing
Designated Material, such counsel shall file or submit such Designated Material or papers
containing or referencing Designated Material, in accordance with the procedures set forth in the
applicable federal, local, and Court rules. The Parties and Designating Parties (as applicable)
shall cooperate with one another to seek a sealing order or other appropriate relief from the
Court. This Order does not set forth the standards that will be applied when a Party seeks leave
from the Court to file material under seal.

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10.

Use of Designated Material in Open Court: In the event that counsel for any

Party determines to use any Designated Material at trial or any hearing to be held in open court,
counsel for that Party shall meet and confer with counsel for the Designating Party at least fortyeight (48) hours prior to the scheduled trial or hearing to be held in open court, or in less than
forty-eight (48) hours upon agreement by counsel for the relevant Parties and Designating Parties
Counsel for any of the other Parties may, but are not required to, join the meet-and-confer.
During the meet-and-confer, counsel for the relevant Parties and Designating Parties shall
discuss whether there are ways to protect the Designated Material, such as redaction, stipulation
as to facts, and/or any other reasonable means that would not obscure the relevant substantive
information in the Designated Material. The inclusion of any Designated Material on a witness
or exhibit list shall satisfy the disclosure obligation of any Party who desires to use or refer to
Designated Material, provided the witness and exhibit list is provided at least forty-eight (48)
hours before the relevant hearing or trial in open court. If no resolution is reached regarding the
use of Designated Material in open court, then the Designating Party bears the burden of
requesting relief from the Court. For the avoidance of doubt, Highly Confidential Material may
not be revealed in open court, except in accordance with this Paragraph.
11.

Within twenty-one (21) calendar days after the settlement or final adjudication,

including appeals, of the entirety of the Proceeding, each Receiving Party shall (a) return all
Designated Material, and all copies thereof, to the relevant Designating Parties (if the
Designating Party so requests within fifteen (15) calendar days of the conclusion of the
Proceedings and pays the reasonable costs of such return) or (b) certify in writing that it has
undertaken reasonable efforts to destroy such Designated Material. Notwithstanding anything to
the contrary in this Paragraph B.11, (x) counsel of record for each Party may retain a file of all

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documents filed with the Court in the Proceeding and attorney work product in the possession or
control of counsel of record for any Party that reflects or includes information derived from
Designated Material, provided further, however, that each Designating Party shall keep a
complete file of all of its designated Highly Confidential Material for a period of five (5) years
from the date of settlement or final adjudication, including all appeals, of the entirety of the
Proceeding.
12.

The restrictions on the use of Designated Material shall survive the conclusion of

the Proceeding. The Court shall retain limited jurisdiction over the Proceeding for the purpose of
enforcing this Order, of resolving any dispute concerning the use of Designated Material
pursuant to the terms of this Order, and to make any amendments to this Order. The Parties
submit themselves to the personal jurisdiction of this Court for the enforcement of this Order.
C.

Manner of Designation

1.

Where reasonably practicable, documents shall be designated as Confidential

Material or Highly Confidential Material by stamping or otherwise clearly marking every such
page (or relevant portion thereof) “Confidential Material” or “Highly Confidential Material”
as applicable, in a manner that will not interfere with legibility. Where marking every page or
relevant portion of such materials is not reasonably practicable, such as with certain native file
documents, the Designating Party shall inform each Receiving Party in writing in a clear and
conspicuous manner at the time of production that such material is “Confidential Material,” or
“Highly Confidential Material” including by providing the relevant Bates ranges where
applicable. Where the “Confidential” or “Highly Confidential” Material portion of a document
is reasonably separable from the non-confidential portion, by means of separately producing the
non-confidential portion (using redaction of otherwise) and the Confidential or Highly

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Confidential portion, only the confidential portion shall be designated as “Confidential Material”
or “Highly Confidential Material” (as applicable).
2.

Depositions: When testimony (including exhibits) during an oral deposition is

designated as Designated Material by a statement to that effect on the record during the
deposition, persons not entitled to receive such information under the terms of this Order shall be
excluded from that portion of the deposition. In addition, any portions of a deposition in which
documents designated as containing Designated Material are marked as exhibits or shown to the
deponent or otherwise employed shall be designated as Designated Material and subject to the
provisions of this Order.
a.

Deposition transcripts of the Parties’ witnesses, or portions thereof,
containing Designated Material shall be so designated in writing no later
than five (5) business days following receipt of the complete draft (but not
rough) transcript from the court reporter. Until such designation is timely
made, or the period for making such designation has expired, all portions
of the deposition transcripts shall be treated as Highly Confidential
Material. Nothing in this paragraph, however, shall preclude any Parties’
witness from reviewing his or her own deposition transcript.

b.

Deposition transcripts of all other witnesses, or portions thereof,
containing Designated Material shall be so designated in writing no later
than five (5) business days following receipt of the complete draft (but not
rough) transcript from the court reporter. Until such designation is timely
made, or the period for making such designation has expired, (i) portions
of deposition transcripts in which documents designated by a Party as
Highly Confidential Material are marked as exhibits, shown to the
deponent, or otherwise employed, shall be treated as Highly Confidential
Material, and (ii) all other portions of deposition transcripts shall be
treated as Confidential Material. Nothing in this paragraph, however, shall
preclude any witness from reviewing his or her own deposition transcript.

c.

Each court reporter participating in any such deposition shall be provided
with a copy of this Order and shall adhere to its provisions. Each court
reporter shall mark those portions (including exhibits) of such deposition
transcript(s) (and where the deposition is videotaped, the relevant portions
of the recording) with the legend “CONFIDENTIAL – DESIGNATED
BY COUNSEL” or “HIGHLY CONFIDENTIAL – DESIGNATED BY
COUNSEL” as applicable, and shall place on the cover of any such

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transcript(s) and recording(s) the following legend:
THIS TRANSCRIPT CONTAINS MATERIALS WHICH ARE
CLAIMED TO BE CONFIDENTIAL BY COUNSEL AND
COVERED BY A STIPULATED PROTECTIVE ORDER.
3.

If a document is designated “Confidential Material,” or “Highly Confidential

Material” and one or more copies of the documents or the original are also produced but not so
designated, the copies or original shall also be treated as Confidential Material or Highly
Confidential Material (as applicable).
4.

Late Designation of Discovery Material:

Except as otherwise stipulated or

ordered, Discovery Material that qualifies for protection under this Protective Order shall be
clearly so designated at the time the material is disclosed or produced. However, failure to
designate particular Discovery Material as “Confidential Material” or Highly Confidential
Material at the time of production shall not operate to waive a Designating Party’s right to later
designate such Discovery Material as Designated Material or t o later apply another designation
pursuant to this Order.

If a Designating Party seeks to re-designate already-produced

documents (“Mis-designated Material”), the Designating Party shall notify all Receiving Parties
in writing and promptly provide replacement copies of the Mis-designated Material with the
proper designation(s).

Each Receiving Party shall then either destroy or return to the

Designating Party all copies of the Mis-designated Material and confirm in writing that it has
taken all reasonable steps to return or destroy such Mis-designated Material. Notwithstanding
the foregoing, no Party shall be deemed to have violated this Order if, prior to notification of any
later designation, such Discovery Material was disclosed or used in any manner consistent with
its original designation but inconsistent with its later designation. Once such later designation
has been made, however, the relevant Discovery Material shall be treated in accordance with that
later designation; provided, however, that if the undesignated material has already been publicly
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filed with a court, no Party shall be bound by any later designation of such material except to the
extent determined by the Court upon motion of the Designating Party that initially failed to make
the designation.
D.

Challenges by a Party to Designations

1.

The designation of any Discovery Material as Designated Material is subject to

challenge by any Party. The following procedure shall apply to any such challenge.
2.

Meet and Confer: A Party challenging the designation of Designated Material

(“Challenging Party”) must do so in good faith and must begin the process by directly notifying
counsel for the Designating Party in writing and providing the relevant Bates range(s) of the
document(s) or otherwise identifying the Designated Material it is challenging. The Challenging
Party must explain, either in writing or during a telephonic or in-person meet-and-confer with
counsel for the Designating Party, the basis for its belief that the confidentiality designation is
not proper and must give the Designating Party an opportunity to review the Designated
Material, to reconsider the designation and, if no change in designation is offered, to explain the
basis for the designation. The Designating Party must respond to the challenge within three (3)
business days of the date on which the Challenging Party provided its basis for challenging the
designation(s), whether in writing or during a meet-and-confer.
3.

Judicial Intervention:

If the meet-and-confer process described above in

Paragraph D.2 is unsuccessful, the Challenging Party may elect to seek to schedule a joint
teleconference with the Court for prompt resolution of the designation.

All such joint

teleconferences shall be held as soon as reasonably practicable for the Court. If, with the Court’s
permission, a Party makes a motion or other written submission challenging a confidentiality
designation, such motion or submission shall identify the challenged material and set forth in
detail the basis for the challenge (in compliance with Paragraph B.9 above), and shall be
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accompanied by a competent declaration affirming that the Challenging Party has complied with
the meet-and-confer requirements of this procedure. Until the Court rules on such motion or
other submission, the Designated Material shall continue to be treated as designated.
Notwithstanding anything to the contrary in this Order, the Court alone will ultimately decide
what standard is required to maintain the status of “Confidential Material” or “Highly
Confidential Material” in accordance with applicable law, and whether that standard has been
met.
4.

Timing of Objections to Designated Material: A Receiving Party shall not be

obliged to challenge the propriety of a confidentiality designation at the time made, and a failure
to do so shall not preclude a subsequent challenge thereto. The failure of any Party to challenge
the designation of Discovery Material as “Confidential Material” or “Highly Confidential
Material” during the discovery period shall not waive that Party’s right to object to the
designation at an evidentiary hearing or trial.
E.

Non-Waiver of Confidentiality or Privilege

1.

In the event of a disclosure by a Receiving Party of Designated Material to

persons or entities not authorized by this Order to receive such Designated Material, the
Receiving Party making the unauthorized disclosure shall, upon learning of the disclosure,
immediately: (i) notify the person or entity to whom the disclosure was made that the disclosure
contains Designated Material subject to this Order; (ii) make reasonable efforts to recover the
disclosed Designated Material and all copies thereof, as well as preclude further dissemination or
use by the person or entity to whom the disclosure was made; and (iii) notify the Designating
Party of the identity of the person or entity to whom the disclosure was made, the circumstances
surrounding the disclosure, and the steps taken to recover the disclosed Designated Material and
to ensure against further dissemination or use thereof. Disclosure of Designated Material other
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than in accordance with the terms of this Order may subject the disclosing person to such
sanctions and remedies as the Court may deem appropriate.
2.

The inadvertent or unintentional disclosure of Designated Material, regardless of

whether the information or document was so designated at the time of the disclosure, shall not be
deemed a waiver, either in whole or in part, of a Designating Party’s claim of confidentiality,
either as to the specific information or document disclosed or as to any other information or
documents relating thereto on the same or related subject matter (provided that the Designating
Party amends the designation if the information or document was not designated as Designated
Material at the time of disclosure). If the recipient has already shared the information or
document with another person prior to a demand for its return, that recipient shall promptly
notify the other affected persons, and make his or her best efforts to collect and return all copies.
3.

Pursuant to Federal Rule of Evidence 502(d), production or other disclosure,

subsequent to entry of this order, of a document that a Party or non-party later claims should not
have been produced because of a privilege, including but not limited to the attorney-client
privilege or attorney work product doctrine (“Produced Privileged Document”), will not be
deemed to waive any privilege in this or any other federal or state proceeding.
a.

The Party or non-party asserting a privilege may request the return or
destruction of any Produced Privileged Document. A request for the
return of a Produced Privileged Document shall identify each document
that was inadvertently produced and the basis for withholding each such
document from production.

b.

If a Party or non-party asserting a privilege requests the return, pursuant to
this paragraph, of any Produced Privileged Document then in the custody
of another Party or non-party, the Receiving Party shall promptly (i.e.,
within three (3) business days) return, sequester, or destroy the specified
information or documents and any copies thereof; not use or disclose the
information or documents unless and until the Court has made a
determination that privilege does not apply; and take reasonable steps to
retrieve documents if the Receiving Party disclosed them to anyone before
being notified of the privilege claim.
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c.

The Party or non-party asserting a privilege shall preserve the relevant
documents or information until the privilege claim is resolved and shall
promptly (i.e., within three (3) business days) supplement its privilege log
to fully describe the allegedly privileged document.

d.

The Party or non-party asserting a privilege shall also, where applicable,
promptly (i.e., within three (3) business days) provide each Receiving
Party with a replacement production omitting or containing redacted
versions of the document(s) over which the Designating Party or non-party
claims privilege.

e.

Any Party may then move the Court for an order compelling production of
the withheld material, but shall not assert as a ground for entering such an
order the mere fact or circumstances of the inadvertent production and
may not use the contents of the withheld document(s) in its efforts to
compel production.

f.

No Party is precluded by this paragraph from arguing that acts other than
the production in this litigation of the subsequently withheld document(s)
may have constituted a waiver of the privilege(s) claimed.

g.

Notwithstanding this paragraph, none of the Parties, or their outside
counsel are required to delete information that may reside on any
electronic backup systems that are maintained in the normal course of
business for archival and/or disaster recovery purposes.

F.

Designated Material Subpoenaed or Ordered Produced in Other Proceedings

1.

If a Receiving Party is served with a subpoena, discovery requests, or an order

issued in another litigation or arbitration, or in a criminal or civil investigation or regulatory or
administrative proceedings, which would compel disclosure of any material or document
designated in this Proceeding as Designated Material, the Receiving Party must, to the extent
permitted by law, so notify the Designating Party, in writing immediately and in no event more
than three (3) business days after receiving the subpoena, discovery request, or order.
2.

The Receiving Party must also immediately inform in writing the person who

caused the subpoena, discovery request, or order to issue in the other proceeding(s) that some or
all of the requested materials are the subject of this Order. In addition, the Receiving Party must
promptly deliver a copy of this Order to the requesting person in the other proceedings.

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3.

The purpose of imposing the duties described in this paragraph is to alert the

interested persons to the existence of this Order and to afford the Designating Party an
opportunity to try to protect its Designated Material in the other proceedings.
4.

The obligations set forth in this paragraph remain in effect while any Party has in

its possession, custody, or control Designated Material received from any Designating Party or
non-party in connection with the Proceeding.
5.

Nothing in these provisions should be construed as authorizing or encouraging a

Receiving Party in this action to disobey a lawful direction from another court or from a
government agency. Notwithstanding anything to the contrary in this Order, any Receiving
Party may produce Designated Material in response to a request from any governmental
authority.
G.

Amendment

1.

Amendment of Confidentiality Agreement and Stipulated Protective Order: Upon

good cause shown, and on notice to all Parties, any Party may move to amend the provisions of
this Order at any time or the Parties may agree by written stipulation, subject to further order of
the Court if applicable, to amend the provisions of the Order.

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SO STIPULATED AND AGREED
Dated: January 30, 2024
/s/ Sean F. O’Shea
Sean F. O’Shea
Michael E. Petrella
Amanda L. Devereux
Matthew M. Karlan
Joshua P. Arnold
CADWALADER, WICKERSHAM & TAFT LLP
200 Liberty Street
New York, New York 10281
Tel. [phone]
Fax. [phone]
Counsel to Plaintiff Jay Alix
/s/ Mark P. Goodman
John Gleeson
Mark P. Goodman
Andrew J. Ceresney
Erica S. Weisgerber
Nathan S. Richards
DEBEVOISE & PLIMPTON LLP
66 Hudson Blvd.
New York, New York 10001
[phone]

/s/ Jonathan D. Cogan
Matthew I. Menchel
Jonathan D. Cogan
Danielle L. Rose
Benjamin D. Sirota
Christen M. Martosella
Benjamin F. Cooper
KOBRE & KIM LLP
800 Third Avenue
New York, New York 10022
[phone]

Counsel for McKinsey & Company, Inc., McKinsey & Company Inc. United States, and
McKinsey Recovery & Transformation Services U.S., LLC

17

/s/ Ariel N. Lavinbuk
Ariel N. Lavinbuk
Jennifer S. Windom
Brandon L. Arnold
Jack A. Herman
KRAMER LEVIN NAFTALIS & FRANKEL LLP
2000 K Street NW, 4th Floor
Washington, D.C. 20006
[phone]

/s/ Reid M. Figel
Reid M. Figel
Bradley E. Oppenheimer
Robert C. Klipper
KELLOGG, HANSEN, TODD, FIGEL & FREDERICK
P.L.L.C.
1615 M Street, NW, Suite 400
Washington, D.C. 20036
[phone]

Counsel for Jon Garcia, Alison Proshan,
and Robert Sternfels

Counsel for Kevin Carmody and Seth
Goldstrom

/s/ Catherine L. Redlich
Catherine L. Redlich
DRISCOLL & REDLICH
110 West 40th Street, Suite 1900
New York, New York 10018
[phone]

/s/ Micah E. Marcus

Counsel for Dominic Barton

Micah E. Marcus
Christopher Dean
MCDONALD HOPKINS LLC
300 North LaSalle Street, Suite 1400
Chicago, Illinois 60654
[phone]
Counsel for Jared D. Yerian

/s/ Linda Imes
Linda Imes
Christopher W. Dysard
BLANK ROME LLP
1271 Avenue of the Americas
New York, New York 10020
[phone]

/s/ Jed I. Bergman
Jed I. Bergman
Olga Lucia Fuentes-Skinner
Richard C. Ramirez
GLENN AGRE BERGMAN & FUENTES LLP
1185 Avenue of the Americas, 22nd Floor
New York, New York 10036
212.970.1600

Counsel for Mark Hojnacki
Counsel for Virginia “Jean” Molino

18

/s/ Reed Brodsky
Reed Brodsky
Mary Beth Maloney
Lee R. Crain
GIBSON DUNN & CRUTCHER LLP
200 Park Avenue
New York, New York 10166
Tel. [phone]
Counsel to Counterclaim-Defendant
AlixPartners, LLP

January ________, 2024
SO ORDERED this 31st
___ day of _________,
________________________
Hon. Jesse M. Furman
United States District Judge
Southern District of New York
This stipulation binds the parties to treat as confidential the documents
so classified. This Court, however, has not reviewed the documents
referenced herein; therefore, by so ordering this stipulation, the Court
makes no finding as to whether the documents are confidential. That
finding will be made, if ever, upon a document-by-document review
pursuant to the procedures set forth in the Court’s Individual Rules and
Practices and subject to the presumption in favor of public access to
“judicial documents.” See generally Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). To that end, the
Court does not “so order” any provision to the extent that it purports to
authorize the parties to file documents under seal without a prior court
order. See New York ex rel. Khurana v. Spherion Corp., No. 15CV-6605 (JMF), 2019 WL 3294170 (S.D.N.Y. July 19, 2019).

19

Exhibit A

1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JAY ALIX,
Plaintiff,

No. 18-cv-04141 (JMF)

-againstMCKINSEY & CO., INC.; MCKINSEY
HOLDINGS, INC.; MCKINSEY &
COMPANY INC. UNITED STATES;
MCKINSEY RECOVERY &
TRANSFORMATION SERVICES U.S.,
LLC; DOMINIC BARTON; KEVIN
CARMODY; JON GARCIA; SETH
GOLDSTROM; MARK HOJNACKI;
VIRGINIA MOLINO; ALISON
PROSHAN; ROBERT STERNFELS; and
JARED YERIAN,
Defendants.
SETH GOLDSTROM and KEVIN CARMODY,
Counterclaim Plaintiffs,
v.
JAY ALIX and ALIXPARTNERS, LLP,
Counterclaim Defendants.

NON-DISCLOSURE AGREEMENT
I, ________________________________, acknowledge that I have read and understand
the Protective Order in this action governing the non-disclosure of those portions of discovery or
other materials in these proceedings that have been designated as “Confidential Material” or
“Highly Confidential Material.” I will not disclose such “Confidential Material” or “Highly

Confidential Material” to anyone other than for purposes of the Proceeding (as defined in the
Protective Order) and pursuant to the terms of the Protective Order, and at the conclusion of the
Proceeding, I will return all such material 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 my willful violation of any
term of the Protective Order could subject me to punishment for contempt of court.

Dated:
Name:
Title:

2