Innovatus Capital Partners, LLC v. Neuman et al

Filing 75

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Louis L. Stanton on 5/11/2020) (rro)

Case 1:18-cv-04252-LLS Document 75 Filed 05/11/20 Page 1 of 14
Case 1:18-cv-04252-LLS Document 74 Filed 05/11/20 Page 1 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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INNOVATUS CAPITAL PARTNERS, LLC,
1: 18-cv-04252-LLS
Plaintiff,
- against JONATHAN NEUMAN, ANTONY MITCHELL, RITZ
ADVISORS, LLC, GREG WILLIAMS, DARYL
CLARK, AND AMANDA ZACHMAN,
Defendants.

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DOC #: _ _ _ _~ r - DATE FILED:__,::_<:-:=..,J.Z~/.:.....,.//_;;;.2_~_-._

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MV REALTY, PBC, LLC,
1: 18-cv-07142-LLS
Plaintiff,
- against INNOVATUS CAPITAL PARTNERS, LLC,
Defendant.

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--,PROPPnE;e:Bj PROTECTIVE ORDER
The Court having found that good cause exists for issuance of an appropriately tailored
protective order, it is hereby ORDERED that any person subject to this Order shall adhere to the
following terms:
1.
meanings:

-

In this Protective Order, the words set forth below shall have the following

\

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a.

"Proceeding" means the above-captioned related matters, Jnnovatus Capital

Partners, LLC v. Jonathan Neuman, et al, Case No.: 1:18-cv-04252-LLS (S.D.N.Y.), and MV
Realty, PBC, LLC v. Jnnovatus Capital Partners, LLC, Case No. 1: l 8-cv-07142-LLS (S.D.N.Y.).
b.

"Court" means the Hon. Louis L. Stanton, or any other judge to which this

Proceeding may be assigned.
c.

"Confidential" means any Documents, Testimony, or Information which are

m the possession of a Designating Party who believes in good faith that such Documents,
Testimony, or Information are entitled to confidential treatment.
d.

"Confidential

Materials"

means

any

Documents,

Testimony,

or

Information, designated as "Confidential" pursuant to the provisions of this Protective Order, or
copies, reproductions, or summaries thereof.
e.

"Highly Confidential" means any information which is in the possession of

a Designating Party who believes in good faith that the Disclosure of such information to another
Party or non-Party would create a substantial risk of serious financial, competitive or other injury
that cannot be avoided by less restrictive means.

f.

"Highly Confidential Materials" means any Documents, Testimony, or

Information, as defined below, designated as "Highly Confidential" pursuant to the provisions of
this Stipulation and Protective Order.
g.

"Designating Party" means the person, whether it be a party to the

Proceedings or a third party, that designates Documents, Testimony, or Information as
"Confidential."

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h.

"Disclose" or "Disclosed" or "Disclosure" means to reveal, divulge, give,

or make available Documents, Testimony, or Information, or any part thereof, or any information
contained therein.
1.

"Documents" means (i) means any and all items defined by Federal Rule of

Civil Procedure 34(a), whether produced or created by a party or another person, whether produced
pursuant to subpoena, to discovery request, by agreement, or otherwise, and (ii) any copies,
reproductions, or summaries of all or any part of the foregoing.
J.

"Information" includes the content of Documents or Testimony.

k.

"Testimony" means all depositions, declarations, or other testimony taken

or used in this Proceeding, and transcripts thereof.
2.

The Designating Party shall have the right to designate as "Confidential" any

Documents, Testimony, or Information that the Designating Party in good faith believes contains
non-public information that is entitled to confidential treatment.
3.

The Designating Party shall have the right to designate as "Highly Confidential"

only commercially-sensitive, non-public Documents, Testimony, or Information as to which the
Designating Party in good faith believes that the Disclosure to another Party or non-Party would
create a substantial risk of serious financial, competitive, or other injury that cannot be avoided by
less restrictive means.
4.

The entry of this Protective Order does not alter, waive, modify, or abridge any

right, privilege, or protection otherwise available to any party with respect to the discovery of
matters, including but not limited to any party's right to assert the attorney-client privilege, the
attorney work product doctrine, or other privileges, or any party's right to contest any such
assertion.
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5.

Any Documents, Testimony, or Information to be designated as "Confidential" or

"Highly Confidential" must be clearly so designated before the Document, Testimony, or
Information is Disclosed or produced. The "Confidential" or "Highly Confidential" designation
should not obscure or interfere with the legibility of the designated Information.
a.

For Documents, the Designating Party must to the extent feasible affix the

legend "Confidential" or "Highly Confidential" on each page of any Document containing such
designated "'Confidential" or "Highly Confidential" material.
b.

For Testimony given in depositions or otherwise:
1.

the Designating Party may, within 30 days following receipt of the

final deposition transcript, identify any '"Confidential" or "Highly Confidential" Testimony.
11.

Unless otherwise agreed to by the Parties during the deposition

during which Testimony is provided, the entire contents of the deposition shall be deemed ·•Highly
Confidential" during the pendency of the 30-day review period. The parties may agree to extend
the 30-day review period at their discretion.
c.

For other tangible items, including, without limitation, compact discs or

DVDs containing Confidential or Highly Confidential Materials, the Designating Party must affix
in a prominent place on the exterior of the container or containers in which the Information or item
is stored the legend "Confidential" or "Highly Confidential."
d.

For any information or documents disclosed during confidential settlement

discussions or communications, the Designating Party must either prior to or within 24 hours after
the settlement discussion or communication, notify the other party in writing of the specific
information or documents that the Designating Party deems "Confidential" or "Highly
Confidential".
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6.

The inadvertent production of any Document, Testimony, or Information during

discovery in this Proceeding without a "Confidential'' or "Highly Confidential" designation, shall
be without prejudice to any claim that such item is "Confidential" or "Highly Confidential," and
the producing party shall not be held to have waived any rights by such inadvertent production. In
the event that any Document, Testimony, or Information that is subject to a "Confidential" or
"Highly Confidential" designation is inadvertently produced without such designation, the party
that inadvertently produced the document shall give written notice of such inadvertent production
within twenty (20) days of discovery of the inadvertent production, together with a further copy
of the subject, Document, Testimony, or Information designated as "Confidential" or '"Highly
Confidential." Upon receipt of the replacement versions, the party that received the inadvertently
produced Document, Testimony, or Information shall promptly destroy the inadvertently produced
Document, Testimony, or Information and all copies thereof, or return such Document, Testimony,
or Information, together with all copies of the same, to counsel for the Designating Party and shall
retain only the materials marked "Confidential" or "Highly Confidential." Should the receiving
party choose to destroy such inadvertently produced Document, Testimony, or Information, the
receiving party shall notify the Designating Party in writing of such destruction within ten ( 10)
days of receipt of written notice of the inadvertent production.
7.

In the event that counsel for a party receiving Documents, Testimony, or

Information designated as "Confidential" or "Highly Confidential" objects to such designation,
said counsel shall advise counsel for the Designating Party, in writing, of such objections and the
specific Documents, Testimony, or Information, or portions of Documents, Testimony, or
Information, to which each objection pertains (the "Designation Objections"). The Parties shall
meet and confer regarding the Designation Objections within ten (10) business days after an

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objection is made. If the Parties are unable to resolve any dispute regarding the Designation
Objections, the objecting party may file a motion challenging the designation of the materials as
"Confidential" or "Highly Confidential."
8.

Access to and/or Disclosure of Confidential Materials shall be permitted only to the

following persons or entities:
a.

the Court;

b.

Attorneys of record in the Proceeding and their partners, associates, co-

counsel, paralegals, clerical, and secretarial staff;
c.

In-house counsel to the undersigned Parties, and the paralegal, clerical, and

secretarial staff employed by such counsel;
d.

Those officers, directors, partners, members, employees and agents of all

non-designating Parties that counsel deem necessary to aid in the prosecution and defense of this
Proceeding; provided, however, that each such person given access to Confidential Materials shall
be advised that such materials are being Disclosed pursuant to, and are subject to, the terms of this
Protective Order and may not be Disclosed other than pursuant to its terms;
e.

stenographers and video technicians engaged to transcribe or record

depositions conducted in this Proceeding (whether at depositions, hearings, or any other
proceeding);
f.

any deposition, trial, or hearing witness in the Proceeding who previously

has had access to the Confidential Materials, or who is currently an officer, director, partner,
member, employee or agent of an entity that has had access to the Confidential Materials; provided,
however, that each such witness shall be advised that such materials are being Disclosed pursuant

6

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to, and are subject to, the terms of this Stipulation and Protective Order and that they may not be
Disclosed other than pursuant to its terms;
g.

any deposition or non-trial hearing witness m the Proceeding who

previously did not have access to the Confidential Materials; provided, however, that such
Confidential Materials may not be provided to any such witness in advance of the deposition or
non-trial hearing at which testimony will be provided, nor retained by the witness after such
testimony is provided; and further provided that at least two (2) days prior to the deposition or
non-hearing testimony, the Party making the Disclosure shall notify the disclosing party of the
planned Disclosure, such that if, after being notified of a planned Disclosure of Confidential
Materials to a person under this Section, the Disclosing Party objects to the Disclosure, no such
Disclosure shall be made until such time as the Court overrules the Disclosing Party's objection,
or the parties resolve such objection between themselves. At the time of any Disclosure of
Confidential Materials to any witness under this Section, the Party making the Disclosure shall
advise the witness that such materials are being Disclosed pursuant to, and are subject to, the terms
of this Stipulation and Protective Order and that they may not be Disclosed other than pursuant to
its terms;
h.

mock jury participants, provided, however, that prior to the Disclosure of

Confidential Materials to any such mock jury participant, counsel for the Party making the
Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain
that such person is bound to follow the terms of such Order, and shall secure the signature of such
person on a statement in the form attached hereto as Exhibit A.
1.

outside experts or expert consultants retained by the undersigned Parties or

their counsel in connection with the Proceeding, whether or not retained to testify; provided,
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however, that prior to the Disclosure of Confidential Materials to any such expert or expert
consultant, counsel for the party making the Disclosure shall deliver a copy of this Protective Order
to such person, shall explain its terms to such person, and shall secure the signature of such person
on a statement in the form attached hereto as Exhibit A. It shall be the obligation of counsel, upon
learning of any breach or threatened breach of this Protective Order by any such expert or expert
consultant, to notify counsel for the Designating Party, in writing, of such breach or threatened
breach within no fewer than three business days of the breach or threatened breach;

J.

mediators, special masters or settlement facilitators engaged by the Parties

or serving by virtue of Court order;
k.
9.

any other person or entity that the Designating Party agrees to in writing.

Access to and/or Disclosure of Highly Confidential Materials shall be permitted

only to the following persons or entities;
a.

Trial Counsel in the Proceeding and their partners, associates, co-counsel,

paralegals, clerical, and secretarial staff; "Trial Counsel," for purposes of this Paragraph, shall
mean outside retained counsel and their affiliated attorneys, and shall not include in-house counsel
to the undersigned Parties and the paralegal, clerical and secretarial staff employed by such inhouse counsel;
b.

outside experts or expert consultants retained by the undersigned Parties or

their counsel in connection with the Proceeding, whether or not retained to testify; provided,
however, that prior to the Disclosure of Confidential Materials to any such expert or expert
consultant, counsel for the party making the Disclosure shall deliver a copy of this Protective Order
to such person, shall explain its terms to such person, and shall secure the signature of such person
on a statement in the form attached hereto as Exhibit A. It shall be the obligation of Trial Counsel,

8

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upon learning of any breach or threatened breach of this Protective Order by any such expert or
expert consultant, to notify counsel for the Designating Party, in writing, of such breach or
threatened breach within no fewer than three business days of the breach or threatened breach;
c.

any person who authored, received, saw, or was otherwise familiar with

Documents, Testimony, or Information or things designated "Highly Confidential," including any
person otherwise familiar with the Highly Confidential Information contained therein, but only to
the extent of that person's prior familiarity with the Highly Confidential Information;
d.

stenographers and video technicians engaged to transcribe or record

depositions conducted in this Proceeding (whether at depositions, hearings, or any other
proceeding); and
e.
10.

the Court.

Confidential and Highly Confidential Materials shall be used by the persons or

entities receiving them solely for the purposes of preparing for, conducting, participating in the
conduct of, and/or prosecuting and/or defending the Proceeding, and not for any other purpose
whatsoever.
11.

Any Documents, Information, or Testimony that may be produced in the

Proceeding, pursuant to subpoena or otherwise, may be designated as "Confidential" or "Highly
Confidential" under the terms of this Protective Order, and any such designation by a non-party to
the Proceeding shall have the same force and effect, and create the same duties and obligations, as
if made by one of the parties hereto. Any such designation shall also function as consent by such
producing non-party to the authority of the Court in the Proceeding to resolve and conclusively
determine any motion or other application made with respect to such designation, or any other
matter otherwise arising under this Protective Order.
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12.

Entering into, agreeing to, and/or complying with the terms of this Protective Order

shall not in any way restrict the ability of a party to use its own Confidential or Highly Confidential
Materials in any manner.
13.

If any person subject to this Protective Order who has custody of any Confidential

or Highly Confidential Materials receives a subpoena or other process ("Subpoena") from any
government or other person or entity demanding production of such materials, the recipient of the
Subpoena shall promptly give notice of the same by electronic mail transmission, followed by
either express mail or overnight delivery to counsel of record for the Designating Party, and shall
furnish such counsel with a copy of the Subpoena. Upon receipt of this notice, the Designating
Party may, in its sole discretion and at its own cost move to quash or limit the Subpoena, otherwise
oppose production of the Confidential or Highly Confidential Materials, and/or seek to obtain
confidential treatment of such materials from the subpoenaing person or entity to the fullest extent
available under law. The person receiving the Subpoena shall cooperate with the Designating
Party in any proceeding related thereto. Additionally, no party will object to the Designating Party
having a reasonable opportunity to appear in any litigation or proceeding commanding disclosure
of such protected material for the sole purpose of seeking to prevent or restrict disclosure thereof.
The recipient of the Subpoena may not produce any Confidential or Highly Confidential Materials
pursuant to the Subpoena prior to the date specified for production on the Subpoena.
14.

Nothing in this Protective Order shall be construed to preclude the parties to the

Proceeding from asserting in good faith that certain Confidential or Highly Confidential Materials
may require additional protection. The parties shall meet and confer to agree upon the terms of
such additional protection, and to the extent they are unable to agree, may request such additional
protection from the Court.
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15.

All persons subject to this Protective Order must take reasonable precautions to

protect from unauthorized disclosure any Confidential or Highly Confidential Materials produced
by a Designating Party. If any Confidential or Highly Confidential Materials produced under the
terms of this Protective Order is Disclosed by a receiving party to any person other than in the
manner authorized by this Protective Order, the party responsible for the Disclosure shall bring all
pertinent facts relating to the Disclosure of such Confidential or Highly Confidential Materials to
the immediate attention of the Designating Party. Disclosure of Confidential or Highly
Confidential Materials other than in accordance with the terms of this Protective Order may subject
the disclosing person to such sanctions and remedies as the Court may deem appropriate.
16.

Where any Confidential or Highly Confidential Materials, or Information derived

therefrom, is included in any motion or other proceeding in this Proceeding, the Parties and any
involved non-party shall follow the procedures outlined in Fed. R. Civ. P. 5.2, the Standing Order
Regarding Electronic Filing Under Seal in Civil and Miscellaneous Cases dated December 19,
2019, and the Individual Rules of Practice issued of the Court, or any Standing Procedural Order
subsequently issued by the Court.
17.

The Parties shall meet and confer regarding the procedures for use of any

Confidential or Highly Confidential Materials at any hearing or trial and shall move the Court for
entry of an appropriate order.
18.

In the event that a producing party (including any non-party to the Proceeding)

produces a Document that it later discovers or in good faith asserts to be a privileged or protected
Document, the production of that Document shall not be deemed to constitute the waiver of any
applicable privileges or protections. In such circumstances, the producing party must immediately
notify the receiving party of the inadvertent production, and request the return or confirmed
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destruction of the materials. Within ten (10) calendar days of receiving such notification, the
receiving party shall return or confirm destruction of all such materials, including any summaries
thereof. Such return or confirmation of destruction shall not preclude the receiving party from
seeking to compel production of the materials for reasons other than its inadvertent production and
shall not constitute an admission by the receiving party that the materials were, in fact, privileged
or protected in any way.

19.

This Protective Order shall continue to be binding after the conclusion of this

Proceeding and all subsequent proceedings arising from this Proceeding.
20.

Upon the termination (whether by judgment, settlement or otherwise) of this

Proceeding, the Parties shall have sixty (60) days to either (a) return to counsel for each
Designating Party all Confidential or Highly Confidential Materials of such Designating Party,
and all copies thereof ( except that counsel for each party to the Proceeding may maintain in its
files, in continuing compliance with the terms of this Protective Order, all work product, one copy
of each pleading filed with the Court, and one copy of each deposition transcript together with the
exhibits marked at the deposition), or (b) immediately (i) destroy all Confidential or Highly
Confidential Materials and copies thereof, and (ii) provide written certification of the destruction
of such materials to counsel for the Designating Party.

BY THE COURT:

It is so ORDERED.

~,,.Ji~

Hon. Louis L. Stanton

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[EXHIBIT A]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------------------X
INNOVATUS CAPITAL PARTNERS, LLC,
1: l 8-cv-04252-LLS
Plaintiff,
- against JONATHAN NEUMAN, ANTONY MITCHELL, RITZ
ADVISORS, LLC, GREG WILLIAMS, DARYL
CLARK, AND AMANDA ZACHMAN,
Defendants.
------------------------------------------------------------------------ X
MV REAL TY, PBC, LLC,
1: l 8-cv-07142-LLS
Plaintiff,
- against INNOVATUS CAPITAL PARTNERS, LLC,
Defendant.

-------------------------------------------------------------------------X
ENDORSEMENT OF PROTECTIVE ORDER
I,

- - - - - - - - - -, acknowledge that I have read and understand the

Protective Order in this action governing the Disclosure of Confidential Materials. I agree that I
will not disclose Confidential or Highly Confidential Materials 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
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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:

[NAME]

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