Lea v. TAL Education Group et al

Filing 65

STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED (Signed by Magistrate Judge Katharine H. Parker on 3/31/2021) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDWARD LEA, et al.,
Plaintiffs,

03/31/2021

Case No. 1:18-cv-05480-LAP-KHP
Honorable Katharine H. Parker

v.
TAL EDUCATION GROUP, et al.,
Defendants.
STIPULATION AND PROPOSED PROTECTIVE ORDER
WHEREAS, the Parties having agreed to the following terms of confidentiality, and the
Court having found that good cause exists for the issuance of an appropriately tailored
confidentiality order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, it is hereby
ORDERED that the following restrictions and procedures shall apply to the information
and documents exchanged by the parties in connection with the pre-trial phase of this action:
1.

Counsel for any party or non-party may designate any document or information,
in whole or in part, as confidential if counsel determines, in good faith, that such
designation is necessary to protect the interests of the client in information that is
proprietary, a trade secret or otherwise sensitive non-public information
(“Confidential Information”).
a. For information in documentary form (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that
the Producing Party affix at a minimum, the legend “CONFIDENTIAL”
(hereinafter “CONFIDENTIAL legend”) to each page that contains material
the producing party or non-party deems confidential.
b. A party or non-party that makes original documents available for inspection
need not designate them for protection until after the inspecting party has
indicated which documents it would like copied and produced. During the
inspection and before the designation, all of the material made available for
inspection shall be deemed “CONFIDENTIAL.” After the inspecting party
has identified the documents it wants copied and produced, the producing
party or non-party must determine which documents, or portions thereof,
qualify for protection under this Order. Then, before producing the specified
documents, the producing party or non-party must affix the
“CONFIDENTIAL” legend to each page that contains material deemed
confidential.

667568.1

c. With respect to any electronic document produced in native file format, the
producing party or non-party shall designate such confidential document by
(1) naming such file with a number consistent with the numbering scheme
used by that producing person for production of paper or image documents;
(2) producing a slip sheet bearing the number corresponding to the name of
the file, which sheet shall state “DOCUMENT PRODUCED IN NATIVE
FILE FORMAT” and shall bear the legend “Confidential”; and (3) labeling
any disk or other electronic medium on which such file is contained as
“Confidential.”
d. For testimony given in depositions, the designating party or non-party may
identify any disclosure or discovery material on the record, before the close of
the deposition, as protected testimony. In addition, any party, regardless of
their role in sponsoring, offering, or giving deposition testimony, or a nonparty that sponsors, offers, or gives deposition testimony has up to thirty (30)
days after the receipt of the written transcript to identify specific portions of
the testimony as to which “CONFIDENTIAL” protection is sought. The
entire transcript of any deposition will be treated as if designated
“CONFIDENTIAL” until this thirty (30) day period has elapsed.
e. The court reporter must affix on each page containing protected material the
legend “CONFIDENTIAL” as instructed by the party or non-party offering or
sponsoring the witness or presenting the testimony.
f. For information produced in some form other than documentary and for any
other tangible items, that the producing party or non-party affix in a prominent
place on the exterior of the container or containers in which the information is
stored the legend “CONFIDENTIAL.” If only a portion or portions of the
information warrants protection, the producing party or non-party, to the
extent practicable, shall identify the protected portion(s).
2.

The Confidential Information disclosed will be held and used by the person
receiving such information solely for use in connection with the action.

3.

In the event a party challenges another party’s designation of confidentiality,
counsel shall make a good faith effort to resolve the dispute, and in the absence of
a resolution, the challenging party may seek resolution by the Court. Nothing in
this Protective Order constitutes an admission by any party that Confidential
Information disclosed in this case is relevant or admissible. Each party reserves
the right to object to the use or admissibility of the Confidential Information.

4.

Documents designated as “CONFIDENTIAL” shall not be disclosed to any
person, except:
a. Outside counsel and relevant in-house counsel for the Parties, as well as
employees of such outside counsel or in-house counsel to whom it is
reasonably necessary to disclose the information for the prosecution or
defense of this litigation;
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667568.1

b. Attorneys representing an insurer or indemnitor of any defendant, including
the insurer’s or indemnitor’s legal team;
c. Consultants or experts assisting in the prosecution or defense of the matter, to
the extent deemed necessary by counsel;
d. The Court (including the mediator, other person having access to any
Confidential Information by virtue of his or her position with the Court, or a
court of competent jurisdiction in a proceeding by a party or non-party in
connection with this action (e.g., in connection with a subpoena or similar
discovery request made to obtain discovery material for use in this action),
provided that the disclosing party submits the same under seal);
e. Court reporters and their staff engaged for depositions;
f. Professional jury or trial consultants, mock jurors, and persons or entities that
provide litigation support services (e.g., photocopying, videotaping,
transcribing, translating, preparing exhibits or demonstrations, and organizing,
storing, or retrieving data in any form or medium) and their employees and
subcontractors to whom disclosure is reasonably necessary for this Action and
who have signed an agreement to be bound by this Order in the form attached
hereto;
g. The author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
and
h. During their depositions, witnesses, and attorneys for witnesses, in the action
to whom disclosure is reasonably necessary provided: (1) the deposing party
requests that the witness sign an agreement to be bound by this Order in the
form attached hereto; and (2) the witness will not be permitted to keep any
Confidential Information, unless otherwise agreed by the designating party or
non-party or ordered by the Court. Pages of transcribed deposition testimony
or exhibits to depositions that reveal Confidential Information may be
separately bound by the court reporter and may not be disclosed to anyone
except as permitted under this Stipulated Protective Order.
i. Any person expressly named and agreed to in writing by the Producing Party
or by Order of the Court.
5.

Counsel for any party may designate any document or information, in whole or in
part, as attorney eyes only (“Attorneys Eyes Only Information”) if counsel
determines, in good faith, that such designation is necessary. Information and
documents designated by a party as attorney eyes only will be stamped
“ATTORNEY EYES ONLY.” All documents designated as “ATTORNEY EYES
ONLY” shall not be disclosed to any person, except the persons identified in
subparagraphs a., d., e., g. and i. of ¶4 herein.

6.

Prior to disclosing or displaying the Confidential Information to any person
identified in subparagraphs a.-c., f., g., & i. of ¶4 herein, counsel must:
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a. Inform the person of the confidential nature of the information or documents;
b. Inform the person that this Court has enjoined the use of the information or
documents by him/her for any purpose other than this litigation and has
enjoined the disclosure of the information or documents to any other person;
and
c. Require each such person to sign an agreement to be bound by this Order in
the form attached hereto.
7.

The disclosure of a document or information without designating it as
“CONFIDENTIAL” or “ATTORNEY EYES ONLY” shall not constitute a
waiver of the right to designate such document or information as Confidential
Information or Attorneys Eyes Only Information. If so designated, the document
or information shall thenceforth be treated as Confidential Information subject to
all the terms of this Stipulation and Order.

8.

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 shall be maintained by the receiving party
in a manner that is secure and confidential and shared only with authorized
individuals in a secure manner. The producing party may specify the minimal
level of protection expected in the storage and transfer of its information. In the
event the party who received PII experiences a data breach, it shall immediately
notify the producing party of same and cooperate with the producing party to
address and remedy the breach. Nothing herein shall preclude the producing party
from asserting legal claims or constitute a waiver of legal rights and defenses in
the event of litigation arising out of the receiving party’s failure to appropriately
protect PII from unauthorized disclosure.

9.

Pursuant to Federal Rule of Evidence 502, the production of privileged or workproduct protected documents or communications, electronically stored
information (“ESI”) or information, whether inadvertent or otherwise, shall not
constitute a waiver of the privilege or protection from discovery in this case or in
any other federal or state proceeding. This Order shall be interpreted to provide
the maximum protection allowed by Federal Rule of Evidence 502(d). Nothing
contained herein is intended to or shall serve to limit a party’s right to conduct a
review of documents, ESI or information (including metadata) for relevance,
responsiveness and/or segregation of privileged and/or protected information
before production.

10.

Notwithstanding the designation of information as “CONFIDENTIAL” or
“ATTORNEY EYES ONLY” in discovery, there is no presumption that such
information shall be filed with the Court under seal. The parties shall follow the
Court’s procedures with respect to filing under seal.

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11.

At the conclusion of litigation, Confidential Information and any copies thereof
shall be promptly (and in no event later than 30 days after entry of final judgment
no longer subject to further appeal) returned to the producing party or certified as
destroyed, except that the parties’ counsel shall be permitted to retain their
working files on the condition that those files will remain protected.

12.

Prior to the use of Confidential Information at a hearing to be held in open court,
counsel who desires to use such Confidential Information shall take reasonable
steps to afford counsel for the designating party a reasonable opportunity to object
to the disclosure in open court of Confidential Information.

13.

Nothing herein shall preclude the parties from disclosing material designated to
be Confidential Information or Attorney Eyes Only Information if otherwise
required by law or pursuant to a valid subpoena.

14.

No information that is in the public domain or which is already known by the
receiving party through proper means or which is or becomes available to a party
from a source other than the party asserting confidentiality, rightfully in
possession of such information on a non-confidential basis, shall be deemed or
considered to be confidential under this Order.

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03/31/2021

Agreement
I have been informed by counsel that certain documents or information to be disclosed to
me in connection with the matter entitled have been designated as confidential. I have been
informed that any such documents or information labeled “CONFIDENTIAL” are confidential
by Order of the Court.
I hereby agree that I will not disclose any information contained in such documents to
any other person. I further agree not to use any such information for any purpose other than this
litigation.
DATED:
___________________________
Signed in the presence of:
___________________________
(Attorney)

667568.1