Ohio Carpenters' Pension Fund v. Bank of America, N.A. et al

Filing 291

STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Magistrate Judge Sarah Netburn on 9/16/2022) (ras)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

IN RE EUROPEAN GOVERNMENT
BONDS ANTITRUST LITIGATION

9/16/2022
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: Lead Case No. 1:19-cv-2601 -VM-SN
:
:
:
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STIPULATION AND PROTECTIVE ORDER
Discovery requests and subpoenas served in the Action may call for the production or
disclosure of trade secret or other confidential research, development, or commercial information
within the meaning of Fed. R. Civ. P. 26(c), and other private or competitively or otherwise
sensitive information for which special safeguarding and protection from public disclosure and
from use for any purpose other than prosecuting this Action is warranted. Accordingly, the Parties
hereby stipulate to and petition the Court to enter the following Stipulated Protective Order
(“Order”) pursuant to Fed. R. Civ. P. 26(c) and Fed. R. Evid. 502(d).
I.

DEFINITIONS
1.1.

“Action” means the above-captioned action, and any and all cases consolidated or

coordinated with it.
1.2.

“Party” means any party to the Action, including all of its officers, directors, and

employees.
1.3.

“Non-Party” means any natural person or entity that is not a named party to the

1.4.

“Discovery Material” means all items or information, regardless of the medium or

Action.

manner generated, stored, or maintained, including, among other things, documents, testimony,
interrogatory responses, transcripts, depositions and deposition exhibits, responses to requests to

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admit, recorded or graphic matter, electronically stored information, tangible things, and/or other
information produced, given, exchanged by, or obtained from any Party or Non-Party during
discovery in this Action.
1.5.

“Confidential Material” means any Producing Party (as defined below) may,

subject to the provisions of this Order, designate as “Confidential” any Discovery Material that
the Producing Party reasonably and in good faith believes constitutes or reveals: (i) confidential
trade secrets; (ii) proprietary business information; or (iii) non-public personal, client, or customer
information concerning individuals or other entities. A Producing Party may designate any
Disclosure or Discovery Material as “Confidential Material” if it contains or reflects confidential,
proprietary, and/or commercially sensitive information. Nothing in this Order shall be used to
imply that any law permits, or does not permit, the production of certain data, regardless of whether
such data is designated as “Confidential.”
1.6.

“Highly Confidential Material” means any Producing Party may, subject to the

provisions of this Order, designate any Discovery Material as “Highly Confidential,” if the
Producing Party reasonably and in good faith believes the Discovery Material contains: (i) current
trade secrets or other information that the party reasonably believes the unauthorized disclosure of
which would create a substantial risk of competitive, commercial or financial harm to the
Producing Party or its personnel, clients, or customers; or (ii) any non-public personal, client, or
customer information concerning minors. Highly Confidential Material includes information (of
which applicable law—foreign or domestic—requires the equivalent of “Highly Confidential”
treatment as set forth in this Order. Highly Confidential Material also includes Discovery Material
protected from disclosure under the attorney-client privilege, work product doctrine, United States
or foreign bank disclosure laws or regulations, and/or any other applicable United States or foreign

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statute, law, regulation, privilege, or immunity from disclosure. Nothing in this Order shall be
used to imply that any law permits, or does not permit, the production of certain data, regardless
of whether such data is designated as “Highly Confidential.”
1.7.

“Foreign Personal Data” means any information that a Party believes in good faith

to be subject to federal, state, or foreign data protection laws or other privacy or secrecy
obligations. Examples of such data protection laws potentially include but are not limited to: The
Health Insurance Portability and Accountability Act and the regulations thereunder, 45 C.F.R. Part
160 and Subparts A and E of Part 164 (medical information); Regulation (EU) 2016/679 of the
European Parliament and of the Council of 27 April 2016 (“General Data Protection Regulation”);
the UK General Data Protection Regulation; UK Data Protection Act 2018; French Law No. 7817 of January 1978 on Information Technology, Data Files, and Civil Liberties; French Law No.
68-678 of July 26, 1968 relating to the Communication of Economic, Commercial, Industrial,
Financial, or Technical Documents and Information to Foreign Individuals or Legal Entities, as
modified by Law No. 80-538 of July 16, 1980, Articles L511-33 and L511-34 of the French
Monetary and Financial Code, the Swiss Criminal Code, Article 47 of the Swiss Federal Act on
Banks and Savings Banks, Article 328b of the Swiss Code of Obligations, the Swiss Federal Act
on Data Protection of June 19, 1992, and related ordinances; the Japanese Act on the Protection of
Personal Information; and any other foreign national data protection laws; and in each case
including any legally binding regulations, directions and orders issued from time to time under or
in connection with any such laws; the German Federal Data Privacy Act; the Italian Privacy Code;
and any foreign banking secrecy laws or regulations, that would otherwise prohibit a Producing
Party from disclosing such information to one or more of the Receiving Parties. If any Producing
Party is called upon to produce Discovery Material in this lawsuit that contains Foreign Personal

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Data, such Producing Party may designate such Discovery Materials as Highly Confidential
Material under the terms of this Order. Nothing in this paragraph shall be used to imply that any
such law permits, or does not permit, the production of certain data, regardless of whether such
data is designated as “Foreign Personal Data.”
1.8.

“Producing Party” means any Party or Non-Party that produces Discovery Material

in this Action.
1.9.

“Receiving Party” means any Party or Non-Party that receives Discovery Material

from a Producing Party.
1.10.

“Designating Party” means any Party or Non-Party that designates Discovery

Material as Confidential or Highly Confidential.
1.11.

“Protected Material” means any Discovery Material that is designated as

Confidential or Highly Confidential.
1.12.

“Outside Counsel” means attorneys, along with their paralegals and other support

personnel assisting them with this Action (including temporary or contract staff), who are not
employees of a Party but who have been retained to represent or advise a Party in connection with
this Action.
1.13.

“In House Counsel” means attorneys and other personnel employed by a Party to

perform or support legal functions, to whom disclosure of Discovery Material is reasonably
necessary in connection with this Action.
1.14.

“Counsel” (without qualifier) means Outside Counsel and In House Counsel (as

well as their support staffs).
1.15.

“Principal” means an owner, officer, or executive of any Party whose identity as an

owner, officer, or executive has been disclosed to all other Parties.

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1.16.

“Expert” and/or “Consultant” means a person with specialized knowledge or

experience in a matter pertinent to this Action, along with his or her employees and support
personnel, who has been retained by a Party or its Counsel to serve as an expert witness or as a
consultant in this Action, and who is not currently an employee of a Party and who, at the time of
retention, is not anticipated to become an employee of a Party. This definition includes a
professional jury or trial consultant retained in connection with this Action.
1.17.

“Professional Vendors” means persons or entities that provide litigation support

services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations;
organizing, storing, or processing data in any form or medium) and their employees and
subcontractors.
1.18.

“Privileged Material” means Discovery Material protected from disclosure under

the attorney-client privilege, work product doctrine, and/or any other applicable statute, law,
regulation, privilege, or immunity from disclosure.
II.

SCOPE
The protections conferred by this Order cover not only Protected Material (as defined

above), but also (1) any information copied or extracted from Protected Material; (2) all copies,
excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations,
or presentations by Parties or their Counsel that reveal Protected Material.

However, the

protections conferred by this Order do not cover the following information: any information that
is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public
domain after its disclosure to a Receiving Party as a result of publication not involving a violation
of this Order, including becoming part of the public record through trial or otherwise. Discovery

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Material may be used by the Receiving Party solely for purposes of the prosecution or defense,
including any settlement thereof, of this Action, and for no other purpose whatsoever.
III.

DURATION
The confidentiality obligations imposed by this Order shall remain in effect until the

Designating Party agrees otherwise in writing or this Court orders otherwise.
IV.

DESIGNATING PROTECTED MATERIAL
4.1.

Manner and Timing of Designations: Except as otherwise provided in this Order,

or as otherwise stipulated or ordered, material that qualifies for protection under this Order must
be clearly so designated before the material is disclosed or produced. Designation in conformity
with this Order requires:
(a)

For information in non-native documentary form (including imaged

documents and transcripts of depositions taken in other proceedings), that the Producing Party
affix the legend “Confidential” or “Highly Confidential” to each page of the document and include
the applicable designation in the metadata produced for such document.
(b)

For deposition transcripts and/or exhibits in this Action, that the

Designating Party designate any portion of the testimony as “Confidential” or “Highly
Confidential” in writing on or before the later of (i) thirty (30) calendar days after receipt of the
final transcript, or (ii) the date by which any review by the witness and statement of changes to the
transcript are to be completed under Fed. R. Civ. P. 30(e). Only those portions of the testimony
that are designated for protection in accordance with the preceding sentence shall be Protected
Material under the provisions of this Order. Alternatively, a Designating Party may specify at the
deposition or up to thirty (30) days after the receipt of the final transcript that the entire transcript
shall be treated as “Confidential” or “Highly Confidential.” The entire testimony shall be deemed

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to have been designated Highly Confidential until the time within which the transcript may be
designated has elapsed. If testimony is not designated within the prescribed time period, then such
testimony shall not be deemed Confidential or Highly Confidential except as ordered by the Court
or as provided in Paragraph 4.2 (Inadvertent Failures to Designate). If all or a part of a videotaped
deposition is designated as “Confidential” or “Highly Confidential,” the DVD, plus any container,
shall be so labeled.
(c)

For information produced in electronic, audio, or video format, and for any

other tangible items, that the Producing Party affix the legend “Confidential” or “Highly
Confidential” in a prominent place on the item itself or exterior of the container or containers in
which the information or item is stored, in any metadata accompanying the production, and/or in
the electronic file name, in any suitable and readily viewable manner. Whenever a Receiving Party
to whom electronically stored Discovery Material so designated is produced reduces such
information to hard copy form, to the extent such pages have not previously been marked by the
Producing Party, such Receiving Party shall mark the hard copy by affixing the designation
“Confidential” or “Highly Confidential” to each page of such document.
(d)

For documents produced in native format, that the Producing Party include

the confidentiality designation “Confidential” or “Highly Confidential” in the metadata produced
for such documents and on the placeholder page.
(e)

For interrogatory answers and responses to requests to admit, and the

information contained therein, that the Producing Party affix the legend “Confidential” or “Highly
Confidential” in a prominent place on each page of such document prior to production.

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(f)

For reports created by an expert or consultant relying on or incorporating

Protected Material in whole or in part, that the Party responsible for its creation include the
confidentiality designation “Confidential” or “Highly Confidential” on the report.
(g)

For all other Discovery Material, by placing or affixing on each page of

such material, a “Confidential” or “Highly Confidential” designation.
4.2.

Inadvertent Failures to Designate: If a Producing Party discovers that it produced

material that was not designated as Protected Material or that it produced material that was
designated as Protected Material but had designated that Protected Material in the incorrect
category of Protected Material, the Producing Party may promptly notify all Receiving Parties, in
writing, of the error and identify (by production number) the affected material and its new
designation or re-designation. Thereafter, the material so designated or re-designated shall be
treated as Protected Material in conformity with the new designation or re-designation. Promptly
after providing such notice, the Producing Party shall provide re-labeled copies of the material to
each Receiving Party reflecting the change in designation. Each Receiving Party shall make
reasonable efforts to delete and replace the incorrectly designated material, and all copies thereof,
with the newly designated material and to destroy the incorrectly designated material. To the
extent such information may have been disclosed to anyone not authorized to receive Confidential
or Highly Confidential Discovery Material under the terms of this Order, the Receiving Party shall
make reasonable efforts to retrieve the Discovery Material promptly and to avoid any further
disclosure. If corrected, an inadvertent failure to designate qualified information or items as
“Confidential” or “Highly Confidential” does not waive the Producing Party’s right to secure
protection under this Order for such material. If material is re-designated “Confidential” or
“Highly Confidential” after the material was initially produced, each Receiving Party, upon

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notification of the designation, must make reasonable efforts to assure that the material is treated
in accordance with the provisions of this Order.
4.3.

Different Designations of Same Material: In the event that more than one

Designating Party designates the same Protected Material with different levels of treatment or
confidentiality, all copies of the Protected Material shall be treated as having the highest level of
confidentiality designated by any Designating Party.
4.4.

Upward Designation of Information or Items Produced by Other Parties or Non-

Parties: Subject to the standards of Paragraph 4.1 and notwithstanding Paragraph 4.3, a Party may
upward designate (i.e., change any Discovery Material produced without a designation of
Confidential or Highly Confidential or change any Discovery Material produced as Confidential
to a designation of Highly Confidential) any Discovery Material produced by another party or nonparty, provided that said Discovery Material contains the upward Designating Party’s own Highly
Confidential Material or Confidential Material, or otherwise is entitled to protective treatment
under Federal Rule of Civil Procedure 26(c) or other law, foreign or domestic, such that the upward
designation is appropriate under the terms of this Order.

Upward designation shall be

accomplished by providing written notice to all Parties identifying (by Bates number or other
individually identifiable information) the Discovery Material to be re-designated within sixty (60)
days of production by the disclosing Party. Failure to upward designate within sixty (60) days of
production, alone, will not prevent a Party from obtaining the agreement of all Parties to upward
designate certain Discovery Material or from moving the Court for such relief. Any Party may
object to the upward designation of Discovery Material pursuant to the procedures set forth in
Section 5 regarding challenging designations

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V.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
5.1.

Meet and Confer: If a Party elects to challenge a Designating Party’s

confidentiality designation, it must do so in good faith and must begin the process by notifying the
Designating Party in writing of its challenge and identifying the challenged material with as much
specificity as reasonably practical, including for example, by production number, and by providing
a basis for the challenge. The objecting Party and the Designating Party shall, within ten (10) days
after service of the written objections, meet and confer concerning the objection, unless otherwise
agreed.
5.2.

Judicial Intervention: If the Parties are not able to resolve a dispute about a

confidentiality designation during the meet and confer process set forth in Paragraph 5.1, above,
the Party challenging the designation may seek relief within twenty-one (21) days of the initial
notice of challenge, or within fourteen (14) days of the parties agreeing that the meet and confer
process will not resolve their dispute, whichever is shorter, from the Court in accordance with its
rules and procedures. Until the Court rules on the dispute, all Parties shall continue to afford the
material in question the level of protection to which it is entitled under the Designating Party’s
designation. In the event the Court rules that the challenged material’s designation should be
changed, the Designating Party shall reproduce copies of all materials with their designations
removed or changed in accordance with the ruling within ten (10) days of the ruling.
VI.

FOREIGN PERSONAL DATA
To the extent that a Producing Party reasonably believes that the production of Documents

would implicate Foreign Personal Data and any foreign law or regulation governing the disclosure
of such information in this Action, the Producing Party shall promptly inform the Receiving Party
of such an issue, and the Producing Party shall meet and confer with Receiving Party on the nature

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of the Documents that are implicated such foreign laws and any conditions such laws place on the
production of those Documents. Prior to producing such Documents, the Producing Party may
pseudonymize, anonymize, or redact the portions of such Documents that the Producing Party
believes in good faith to constitute Foreign Personal Data, and in all events shall not redact any
more information than is necessary or that otherwise impairs comprehension of material in a
Document. The parties hereby agree that the entry of a separate supplemental confidentiality order
governing the production of Documents containing Foreign Personal Data may be necessary and
agree to negotiate and execute such confidentiality order. Nothing in this provision, shall be
construed to alter the Parties agreed-to exchange of Documents under ¶ 6.d.ii-iii of the Court’s
Civil Case Management Order (ECF No. 275).
VII.

ACCESS TO AND USE OF DISCOVERY MATERIAL
7.1.

Disclosure of Confidential Material: Unless otherwise ordered by the Court or

permitted in writing by the Designating Party, material designated “Confidential” may be disclosed
by a Receiving Party only to the following persons and only made to the extent reasonably
necessary to prosecute or defend this Action:
(a)

the Receiving Party’s Counsel to whom it is reasonably necessary to

disclose the information in connection with this Action;
(b)

in addition to In House Counsel, and to the extent that such disclosure is

reasonably necessary for the Action, current officers, directors, or employees of each Receiving
Party;
(c)

Experts and/or Consultants retained by a Party or its Counsel to serve as an

expert witness or as a consultant in this Action and who have signed the “Agreement To Be Bound
By Protective Order” (“Exhibit A”), provided that Counsel, in good faith, requires their assistance

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in connection with this Action; and provided further that any part of a report created by such expert
or consultant incorporating Protected Material in whole or in part shall be designated appropriately
by the Party responsible for its creation; and provided further that experts or consultants may not
use Protected Material for any purpose that does not relate to this Action;
(d)

the Court and its personnel in this Action and any appellate court in this

Action, subject to the requirements of Section 9, below;
(e)

special masters, mediators, or other third parties who are appointed by the

Court or retained by the Parties for settlement purposes or resolution of discovery or other disputes
and their necessary personnel and, in the case of persons retained by the Parties, who have signed
Exhibit A;
(f)

court reporters and/or videographers, their staffs, and Professional Vendors

to the extent that such disclosure is reasonably necessary for this Action;
(g)

the author, addressees, or recipients of the document, or any other natural

person who Counsel has a good faith reasonable belief had reviewed or had access to such
document during his or her employment as a result of the substantive nature of his or her
employment position, or who is specifically identified in the document or its accompanying
metadata, provided, however, that (i) the witness is not permitted to retain copies of the Protected
Material after the witness is examined regarding the Protected Material; and (ii) the witness is
explicitly informed by the disclosing Party’s Outside Counsel that this Protective Order forbids
him or her to disclose the Protected Material except as permitted under this Protective Order and
that he or she is subject to the Court’s jurisdiction for the purposes of enforcing this Protective
Order;

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(h)

relevant employees of any insurer to a Party to the extent that such

disclosure is reasonably necessary for the defense of that Party in this Action and who have signed
Exhibit A;
(i)

any other person agreed to by the Designating Party in writing; and

(j)

any other person to whom the Court compels disclosure of the Confidential

Material or to whom disclosure is required by law, subject to the requirements of Section 15 below.
7.2.

Disclosure of Highly Confidential Material: Unless otherwise ordered by the Court

or permitted in writing by the Designating Party, material designated “Highly Confidential” may
be disclosed by a Receiving Party only to the following persons and only made to the extent
reasonably necessary to prosecute or defend this Action:
(a)

the Receiving Party’s Outside Counsel to whom it is reasonably necessary

to disclose the information in connection with this Action;
(b)

Experts and/or Consultants retained by a Party or its Counsel to serve as an

expert witness or as a consultant in this Action and who have signed Exhibit A, provided that
Counsel, in good faith, requires their assistance in connection with this Action; and provided
further that any part of a report created by such expert or consultant incorporating Protected
Material in whole or in part shall be designated appropriately by the Party responsible for its
creation; and provided further that experts or consultants may not use Protected Material for any
purpose that does not relate to this Action;
(c)

the Court and its personnel, subject to the requirements of Section 8, below;

(d)

special masters, mediators, or other third parties who are appointed by the

Court or retained by the Parties for settlement purposes or resolution of discovery or other disputes

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and their necessary personnel and, in the case of persons retained by the Parties, who have signed
Exhibit A;
(e)

court reporters and/or videographers, their staffs, and Professional Vendors

to the extent that such disclosure is reasonably necessary for this Action;
(f)

the author, addressees, or recipients of the document, or any other natural

person who reviewed or had access to such document during his or her employment as a result of
the substantive nature of his or her employment position, or who is specifically identified in the
document or its accompanying metadata, provided, however, that (i) the witness is not permitted
to retain the Protected Material after the witnesses is examined regarding the Protected Material;
and (ii) the witness is explicitly informed by the disclosing Party’s Outside Counsel that this
Protective Order forbids him or her to disclose the Protected Material except as permitted under
this Protective Order and that he or she is subject to the Court’s jurisdiction for the purposes of
enforcing this Protective Order;
(g)

relevant employees of any insurer to a Party to the extent that such

disclosure is reasonably necessary for the defense of that Party in this Action and who have signed
Exhibit A;
(h)

any other person agreed to by the Designating Party in writing; and

(i)

any other person to whom the Court compels disclosure of the Confidential

Material or to whom disclosure is required by law, subject to the requirements of Section 14 below.
7.3.

Standard of Care: The Receiving Party shall maintain any Protected Material that

is provided under the Protective Order in a secure and safe manner that ensures that access is
limited to the persons authorized under this Protective Order. The Receiving Party shall exercise
a standard of due and proper care with respect to the storage, custody, use, and/or dissemination

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sufficient under all applicable laws to safeguard against unauthorized or inadvertent disclosure of
such material, including the use of eDiscovery vendors or claims administrators capable of
complying with such laws to store such documents. All such copies, reproductions, extractions,
and abstractions shall be subject to the terms of this Order and labeled in the same manner as the
designated material on which they are based. The recipient of Foreign Personal Data shall protect
these materials with the same degree of care that they use to protect and safeguard their own
proprietary information. Any such copies, reproductions, extraction, or abstractions are subject to
the same restrictions and controls.
7.4.

Loss of Protected Material or Breach of Security: If a Receiving Party or authorized

recipient discovers any loss of Protected Material or a breach of security, including any actual or
suspected unauthorized access, relating to another party’s Protected Material, the Receiving Party
or authorized recipient shall : (i) promptly provide written notice to the Producing Party of such
breach; (ii) provide sufficient information about the breach that the Producing Party can reasonably
ascertain the size and scope of the breach; and (iii) take all appropriate corrective actions to
terminate the unauthorized access.
7.5.

Compliance With and Retention of Exhibit A: Counsel for the Party that obtains

the signed “Agreement to Be Bound by Protective Order” (Exhibit A), as required above in any
Section, shall be responsible for assuring compliance with the terms of this Order with respect to
person to whom Protected Material is disclosed. Such Counsel shall retain them for six (6) months
following the final termination of this Action, including any appeals, and shall make them
available to other Parties or the Court upon good cause shown.
7.6.

Retention of Protected Material: Unless otherwise agreed to by the Producing

Party in writing or ordered by the Court, persons described in Paragraph 7.1 (g), (i), and (j) who

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have been shown Confidential Material shall not retain copies thereof longer than reasonably
necessary in light of the purpose for which the Confidential Material was disclosed. Persons
described in Paragraphs 7.2 (f),(h), and (i) who have been shown Highly Confidential Material
shall not retain copies thereof longer than reasonably necessary in light of the purpose for which
the Highly Confidential Material was disclosed.
VIII. UNAUTHORIZED DISCLOSURE
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Order, the Receiving Party
must, immediately, (a) notify in writing the Designating Party of the unauthorized disclosures, (b)
make commercially reasonable efforts to retrieve all copies of the Protected Material, (c) inform
the person or persons to whom unauthorized disclosures were made of all the terms of this Order,
and (d) request such person or persons to execute Exhibit A.
IX.

FILING PROTECTED MATERIAL
In the event that Counsel for any Party determines to file or submit in writing to the Clerk

of Court’s office or file on ECF any Protected Material, or any papers containing or making
reference to the substance of such material or information, such documents or portions thereof
containing or making reference to such material or information shall be filed in redacted form or
under seal in accordance with the rules of the Court. The Parties will attempt to resolve any
disputes regarding confidentiality designations three days before any such filing or submission.
Filing under seal shall be without prejudice to any Party’s right to argue to the Court that such
document is not Confidential Material or Highly Confidential Material and need not be preserved
under seal. Protected Material filed under seal must be kept under seal until further order of the
Court. Parties that file a pleading or other paper that includes Protected Material under seal must

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also file on the public record a version of the pleading or other paper from which the Protected
Material has been redacted.
X.

USE OF PROTECTED MATERIAL AT TRIAL
The undersigned agree to meet and confer concerning the use of any Protected Material

during the trial of this Action. The use of Protected Material at trial shall not cause such Protected
Material to lose its status as Protected Material.
XI.

A DESIGNATING OR PRODUCING PARTY’S USE OF ITS OWN OR
INDEPENDENTLY OWNED DOCUMENTS
Nothing in this Order shall be construed to limit in any way any Producing Party’s,

Receiving Party’s, or any other person’s use of its own documents, including documents obtained
independently and lawfully from sources other than a Producing Party, nor shall it affect any
Producing Party’s, Receiving Party’s, or any other person’s subsequent waiver of its own prior
designation with respect to its own Confidential Material or Highly Confidential Material.
XII.

ASSERTIONS OF PRIVILEGE
12.1.

This Stipulation and Order is without prejudice to any Disclosing Party’s right to

assert that any Discovery Material is subject to any applicable claim of privilege or protection,
including, but not limited to, the attorney-client privilege and work product doctrine, any foreign
national data protection laws and any foreign or domestic banking secrecy laws or regulations and
is without prejudice to any other party’s right to contest such a claim of privilege or protection.
12.2.

The Parties agree to exchange privilege logs containing the information called for

by Local Rule 26.2 and Federal Rule of Civil Procedure 26(b)(5), except as otherwise provided in
Paragraphs (3)-(6) below, thirty (30) days after the date of substantial completion of document
productions. The Parties may at their own discretion opt to provide a categorical or group privilege
log in lieu of a traditional document-by-document or communication-by-communication privilege

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log, as set forth in Local Rule 26.2(c), without prejudice to the objection right afforded by the
Receiving Party in Local Rule 26.2(c). The Parties will meet and confer regarding the contents of
any categorical privilege log.
12.3.

Whether categorical/group or traditional, the Withholding Party’s log shall be in

Excel format or any other format that permits electronic sorting and searching.
12.4.

If a Party provides a document-by-document or communication-by-communication

privilege log, a logged Document Family (e.g., email and attachments) may be logged as a single
entry so long as the description of that entry includes a reference to the privileged documents (e.g.,
email with privileged attachments). Similarly, a Party may provide a privilege log that logs only
the most-inclusive versions of an email thread group. Any family or thread group logged in this
manner must include a Duplicate Custodian field listing all Custodians within the family or on the
email thread, as appropriate. The parties agree that they need not exchange the text of litigation
hold/retention instructions issued in this Action without prejudice to a party seeking discovery of
such materials for good cause. Privilege logs under this section shall contain sufficient information
to enable the Receiving Party to evaluate the claims made, including the following: a sequential
number associated with each log record, Custodian, From, To, CC, BCC, Subject (for emails), File
Name (for non-emails), Date, Basis for Withholding (e.g., Attorney-Client Communication), and
Document Description
12.5.

The Parties agree that the following categories of privileged and otherwise

Responsive Documents and ESI need not be included in a privilege log: (a) work product of
counsel and Parties concerning the Action or any related matter, (b) any internal communications
within a law firm, (c) any communications regarding litigation holds or preservation, collection,
or review of Documents in the Action or any litigation or related investigation matter, (d)

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communications with outside counsel generated on or after March 22, 2019, and (e) redacted
documents. A Producing Party agrees to produce a supplemental privilege log entry in response to
any particularized requests for information on a redacted document where the basis for a privilege
redaction is, to the Receiving Party, unclear on the face of the document itself. For the avoidance
of doubt, a Producing Party is not required to log redacted documents provided that it: (i) includes
a metadata field indicating which documents are redacted; and (ii) agrees to produce a
supplemental privilege log entry in response to any particularized requests where the basis for a
privilege redaction is, to the Receiving Party, unclear on the face of the redacted document itself.
The Producing Party shall produce the supplemental privilege log within fourteen (14) days of the
request.
12.6.

If a Party requires further information to evaluate a claim of privilege, it shall

explain in writing the need for such information and identify, by Bates number or other unique
identifier, each document for which it seeks this information. Within fourteen (14) days of such
request, the Producing Party must either (i) provide the requested information or (ii) challenge the
request. If a Producing Party challenges a request for further information, the Parties shall meet
and confer to try to reach a mutually agreeable solution within twenty-one (21) days of any such
challenge. If they cannot agree after exhausting the meet and confer process, the Receiving Party
may seek resolution from the Court in accordance with this Order.
12.7.

Any claim that produced documents are Privileged Material, as well as any claim

that such documents are not Privileged Materials, and any challenge to such claim shall be subject
to the terms of the Protective Order.
XIII. CLAW BACK OF PRIVILEGED MATERIAL
13.1.

The unintentional production of Discovery Material containing Privileged Material

that has not been redacted shall not constitute a waiver of any privilege or protection from
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discovery in this case or in any other federal or state proceeding. In order to claw back Privileged
Material that was produced, the Producing Party must provide notice in writing to the Receiving
Party specifying the production number of the Discovery Material it wishes to claw back, and the
basis of the claim that it is Privileged Material.
13.2.

Upon notice that a Producing Party wishes to claw back Discovery Material

protected as Privileged Material, the Receiving Party shall promptly return to the Producing Party
or destroy all summaries or copies of such Privileged Material, if destroying the documents, shall
certify that destruction to the Producing Party, and shall not use such items for any purpose until
further order of the Court or agreement of the parties. In all events, such return, destruction, and
certification must occur within seven (7) days of receipt of the request, unless the Receiving Party
provides notice of its intent to challenge the assertion of a claim of protection under Fed. R. Civ.
P. 26(b)(5) (the “Challenge Notice”), in which event the Receiving Party may retain a copy (the
“Retained Copy”) of the disclosed material to prosecute its challenge to the assertion of protection.
Having provided a Challenge Notice, the Receiving Party must raise a challenge with the Court
within thirty (30) days of that Challenge Notice, or otherwise return or destroy the Retained Copies
within that period. Moreover, in the event a Challenge Notice is provided, the Receiving Party
shall make no use of the Discovery Material subject to the request for return until the Challenge is
resolved. However, the Receiving Party may request an extension of the deadline for the return or
destruction of Retained Copies, and such extension shall not be unreasonably withheld. For the
avoidance of doubt, nothing in this paragraph shall be construed as restricting the right of any Party
to challenge a claim of privilege at any time permissible under the Federal Rules of Civil Procedure
and other relevant laws after return or destruction of the Retained Copy. Within twenty-one (21)
days of the notification of the return or destruction of Privileged Material, the Producing Party

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shall produce a privilege log with respect to the clawed back Privileged Material. Any motion to
compel production by the Receiving Party shall not rely on any portion of the document. The
return of any Discovery Material to the Producing Party shall not in any way preclude the
Receiving Party from moving the Court for a ruling that the disclosed information is not privileged
or that such privilege has been waived; however, the Receiving Party may not assert as a basis for
the relief it seeks the fact or circumstance that such privileged documents have already been
produced. Alleged Privileged Material shall remain protected against disclosure and use during
the pendency of any dispute over their status.
13.3.

If, during a deposition, a Party claims that a document being used in the deposition

(e.g., marked as an exhibit, shown to the witness, or made the subject of examination) contains
Privileged Material, it may at its sole election (a) allow the document to be used in the deposition
without waiver of its claim of privilege or other protection or (b) instruct the witness not to answer
questions concerning the document pending a prompt resolution of any disagreement concerning
the document’s protected status. If the Party allows the examination concerning the document to
proceed on a non-waiver basis, the Parties shall sequester all copies of the purportedly protected
document. Immediately following the deposition, the Parties will commence the procedure
outlined in the preceding paragraphs to address the claim of privilege or other protection, including
the notice requirement set forth in Paragraph 13.1. Until the dispute is resolved, all Parties and
any other persons who have access to the transcript of such deposition shall treat that transcript as
Confidential Material. If any Party instructs the witness not to answer questions concerning the
document, the Parties will then cooperate in promptly submitting the issue of the document’s status
to the Court. If the document is ultimately determined not to be privileged or subject to other

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protection, the Parties agree to meet and confer in good faith regarding any request by the deposing
Party to depose the witness about the document.
13.4.

Consistent with Fed. R. Evid. 502(d), if a Party or Non-Party at any time notifies

any other Party that it, for any reason, disclosed Discovery Material that is Privileged Material that
is protected from disclosure, or the Receiving Party discovers such disclosure (in which case the
Receiving Party shall give the Producing Party prompt notice), the disclosure alone, consistent
with Rule 502(d), shall not be deemed a waiver – in the Action or in any other proceeding,
including in federal or state proceedings – of any applicable privilege or protection. This Order
shall be interpreted to provide the maximum protection allowed by Fed. R. Evid. 502(d).
XIV. ATTORNEY RENDERING ADVICE
Nothing in this Order will bar or otherwise restrict an attorney from rendering advice to his
or her client or from relying upon or generally referring to Protected Material in rendering such
advice, provided, however, that, in rendering such advice or in otherwise communicating with his
or her client, the attorney shall not reveal or disclose the specific content of Protected Material if
such disclosure is not otherwise permitted under this Order.
XV.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
15.1.

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

in other litigation, or receives some other form of legal process or request from any court, federal
or state regulatory or administrative body or agency, legislative body, self-regulatory organization,
or other person or entity purporting to have authority to require the production thereof, that seeks
disclosure of any information or items designated in this Action as “Confidential” or “Highly
Confidential,” the Receiving Party must notify, to the extent permitted by law and the rules,
requirements, or requests of any relevant governmental or self-regulatory organization, the

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Designating Party, in writing (by fax or electronic mail, if possible), and include with that notice
a copy of the discovery request, subpoena, order, or other form of legal process as soon as
reasonably practicable after receipt unless production is required earlier, in which case the notice
must be made in time for the Designating Party to take steps as set forth below.
15.2.

The Receiving Party also must promptly inform the party that caused the discovery

request, subpoena, order, or other form of legal process or request to issue that some or all of the
material covered by the subpoena or order is the subject of this Order.
15.3.

In addition, the Receiving Party must deliver a copy of this Order promptly to the

party in the other matter that caused the discovery request, subpoena, order, or other form of legal
process or request to issue. To the extent consistent with the rules, requirements, or requests of
any relevant governmental or self-regulatory organization, the Receiving Party shall not produce
the requested Protected Material unless and until a court of competent jurisdiction so directs,
except if the Designating Party (a) consents, or (b) fails to file a motion to quash or fails to notify
the Receiving Party in writing of its intention to contest the production of the Protected Material
prior to the date designated for production of the Protected Material, in which event the Receiving
Party may produce on the production date, but no earlier.
15.4.

In connection with any production of Confidential or Highly Confidential Material

subject to this Order, the Receiving Party shall request confidential treatment for the Confidential
or Highly Confidential Material.
15.5.

The purpose of imposing these duties is, to the extent consistent with the rules,

requirements, or requests of any relevant governmental or self-regulatory organization, or
otherwise permitted by law, to alert the interested parties to the existence of this Order and to
afford the Designating Party an opportunity to try to protect its confidentiality interest in the matter

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or proceeding in connection with which the discovery request, subpoena, or order is issued. The
Designating Party shall bear the burdens and the expenses of seeking protection in that matter or
proceeding of its Protected Material.

Nothing in these provisions should be construed as

authorizing, requiring, or encouraging a Receiving Party to disobey, or to risk contempt of, a lawful
directive from another court.
15.6.

In the event that Discovery Material is produced to a Non-Party as a result of a

discovery request, subpoena, or an order issued in other litigation, or some other form of legal
process from any court, federal or state regulatory or administrative body or agency, legislative
body, or other person or entity, such Discovery Material shall continue to be treated in this Action
in accordance with any designation as Protected Material.
XVI. DURATION OF ORDER/RETURN OF “CONFIDENTIAL” AND
“HIGHLY CONFIDENTIAL” INFORMATION
This Order shall survive the termination of this Action, and this Court shall have continuing
jurisdiction for enforcement of its provisions following termination of this Action. All provisions
of this Order restricting the use of “Confidential” and “Highly Confidential” information shall
continue to be binding unless otherwise agreed or ordered by the Court. Except as provided by law
or other regulatory authority or unless otherwise ordered or agreed in writing by the Producing
Party or as required by local data protection laws, within sixty (60) days after the final termination
of this Action, including any appeals, each Receiving Party shall return to the Producing Party all
Protected Material or, at the option of the Receiving Party, to destroy all Protected Material. In
either case, the Receiving Party shall, upon request, provide the Designating Party with a
certification stating that it has destroyed or returned the Confidential or Highly Confidential
documents, except for (i) such information or material that was transmitted electronically and
whose removal or destruction from a Party’s electronic systems would violate applicable federal

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or state law, rule, or regulation, or policies and procedures reasonably designed to ensure
compliance with such law, rule, or regulation, (ii) information saved on backup media in an
electronically stored format, or (iii) information incorporated into any pleadings, motions, or work
product. In that case, counsel of record shall continue to treat the Confidential or Highly
Confidential Discovery Material in accordance with this Order.
XVII. AMENDMENT OF ORDER
Nothing herein shall preclude any Party from seeking to amend this Order in writing for
good cause shown. Nor shall anything herein preclude any Party or Non-Party from seeking
additional or different protections on a case-by-case basis under the standards set forth in Fed. R.
Civ. P. 26(c).
XVIII. NON-PARTIES
18.1.

Third-Party Discovery: Any Party, in conducting discovery from Non-Parties in

connection with this Action, shall provide any Non-Party from which it seeks discovery with a
copy of this Order to inform each such Non-Party of his, her, or its rights herein. If a Non-Party
provides discovery to any Party in connection with this Action, the provisions of this Order shall
apply to such discovery as if such discovery were being provided by a Party. Under such
circumstances, the Non-Party shall have the same rights and obligations under the Order as held
by the Parties to this Action. Any Non-Party producing Discovery Material or giving deposition
testimony in this Action may avail herself, himself, or itself of the provisions of this Protective
Order available to “Parties” for her, his, or its testimony and Discovery Material by executing
Exhibit A to this Order and informing the Party that served the subpoena of the same.
18.2.

New Parties to This Action: In the event that additional persons or entities become

parties to this Action, such parties shall not have access to Confidential or Highly Confidential

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Material produced by or obtained from any disclosing Party until the newly joined parties or their
counsel endorse a copy of Exhibit A and file it with the Court.
XIX. JURISDICTION
The 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.
XX.

VIOLATIONS OF PROTECTIVE ORDER
In the event that any person or party should violate the terms of this Protective Order, the

aggrieved Producing Party may apply to the Court to obtain relief against any such person or party
violating or threatening to violate any of the terms of this Protective Order. The Parties and any
other person subject to the terms of this Protective Order agree that this Court shall retain
jurisdiction over them for the purpose of enforcing this Protective Order.
XXI. EXECUTION
This Order may be executed in counterparts. This Order shall become effective as a
stipulation as among the executing Parties immediately upon its execution by such executing
Parties, subject to any subsequent modifications if and when so-ordered by the Court.

Dated: September 15, 2022
New York, New York

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SO STIPULATED:
DICELLO LEVITT LLC

SCOTT+SCOTT ATTORNEYS
AT LAW LLP

LOWEY
DANNENBERG, P.C.

By: s/ Gregory S. Asciolla
GREGORY S. ASCIOLLA
485 Lexington Ave., 10th Floor
New York, New York 10017
Tel: [phone]
[e-mail]

By: s/ Christopher M. Burke
CHRISTOPHER M. BURKE
600 W. Broadway, Suite 3300
San Diego, California 92101
Tel: [phone]
[e-mail]

By: s/ Vincent Briganti
VINCENT BRIGANTI
44 S. Broadway
White Plains, New
York 10601
Tel: [phone]
[e-mail]

BERMAN TABACCO
By: s/ Todd A. Seaver
TODD A. SEAVER
425 California Street, Suite
2300
San Francisco, California
94104
Tel.: [phone]
[e-mail]

Interim Co-Lead Counsel

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CRAVATH, SWAINE & MOORE LLP

PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP

s/ John Buretta
John Buretta
Helam Gebremariam
825 Eighth Avenue
New York, New York 10019
Telephone: [phone]
Facsimile: 212-474-3700
[e-mail]
[e-mail]

s/ Aidan Synnott
Aidan Synnott
1285 Avenue of the Americas
New York, New York 10019
Telephone: [phone]
Facsimile: 212-757-3990
[e-mail]
Attorneys for Defendant Nomura Securities
International Inc.

Attorneys for Defendant Nomura
International plc
SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP AND AFFILIATES

MILBANK LLP
s/ Fiona A. Schaeffer
Fiona A. Schaeffer
James G. Cavoli
55 Hudson Yards
New York, New York 10001
Telephone: [phone]
Facsimile: 212-822-5651
[e-mail]
[e-mail]

s/ Boris Bershteyn
Boris Bershteyn
Susan Saltzstein
Sam Auld
One Manhattan West
New York, New York 10001
Telephone: [phone]
Facsimile: 212-735-2000
[e-mail]
[e-mail]
[e-mail]

Mark D. Villaverde
2029 Century Park East, 33rd Floor
Los Angeles, California 90067-3019
Telephone: [phone]
Facsimile: 213-892-4743
[e-mail]

Attorneys for Defendant UniCredit Bank AG

Attorneys for Defendant Natixis S.A.

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CLEARY GOTTLIEB STEEN &
HAMILTON LLP

MORGAN, LEWIS & BOCKIUS LLP
s/ Jon R. Roellke
Jon R. Roellke
1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Telephone: [phone]
Facsimile: 202-739-3001
[e-mail]
(admitted pro hac vice)

s/ Roger A. Cooper_____________
Lev L. Dassin
Roger A. Cooper
Andrew Weaver
One Liberty Plaza
New York, New York 10006
Telephone: [phone]
Facsimile: 212-225-3999
[e-mail]
[e-mail]
[e-mail]

Kenneth I. Schacter
Brian A. Herman
Jawad B. Muaddi
Elizabeth Buechner
101 Park Avenue
New York, New York 10178
Telephone: [phone]
Facsimile: 212-309-6001
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Defendants Citigroup Global
Markets Inc. and Citigroup Global Markets
Limited

Attorneys for Defendants Jefferies International
Limited and Jefferies LLC

SO ORDERED.

Dated: September 16, 2022
New York, New York

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EXHIBIT A
Agreement to Be Bound by Protective Order
I, ____________________________________, have been informed that on the ______
day of ____________, 20___, the U.S. District Court for the Southern District of New York
entered a Protective Order in the In Re European Government Bonds Antitrust Litigation, No. 1:19cv-2601. I have read the Protective Order, I agree to abide by the obligations of the protective
order as they apply to me, and I voluntarily submit to the jurisdiction of the U.S. District Court for
the Southern District of New York for purposes of any proceeding related to the Protective Order,
including my receipt or review of information that has been designated as “Confidential” or
“Highly Confidential.”

Printed Name: ____________________________________
Signature: ____________________________________
Signed in ________________________ on the ______ day of ____________, 20___.