BDG Gotham Residential, LLC et al v. Western Waterproofing Company, Inc. et al.

Filing 139

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Magistrate Judge Barbara C. Moses on 9/16/2022) (rro)

Case 1:19-cv-06386-CM-BCM Document 139 Filed 09/16/22 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
09/16/2022

BDG GOTHAM RESIDENTIAL, LLC, ET AL
Plaintiffs,

19-CV-6386 (CM) (BCM)

- againstWESTERN WATERPROOFING COMPANY, INC.
Defendants.

WESTERN WATERPROOFING COMPANY, INC.
20-CV-03199 (CM) (BCM)
Plaintiff,
STIPULATED PROTECTIVE ORDER
- against -

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

Case 1:19-cv-06386-CM-BCM Document 139 Filed 09/16/22 Page 2 of 10

Discovery Materials May Be Designated as Confidential
1.

This Protective Order (hereinafter, “Order”) shall govern all “Discovery
Materials,” which are defined as all documents and information of any kind
produced in BDG Gotham Residential, LLC, et al v. Western Waterproofing
Company, Inc. et al, 19-CV-6386 (CM) (BCM) (the “Federal Court Liability
Lawsuit”) and Western Waterproofing Company, Inc. v. Zurich American
Insurance Company, et al., 20-CV-03199 (CM) (BCM) (the “Federal Court
Coverage Lawsuit”), whether informally or pursuant to a formal discovery
request.

2.

Any person subject to this Order who receives from any other person any
“Discovery Material” that is designated as “Confidential” pursuant to the terms of
this Order shall not disclose such Confidential Discovery Material to anyone else
except as expressly permitted hereunder.

3.

The person producing Discovery Material may designate as “Confidential” any
portion thereof that contains non-public business, commercial, financial, or
personal information, the public disclosure of which is either restricted by law
or would likely, in the good faith opinion of the producing person, seriously harm
the producing person’s business, commercial, financial, or personal interests or
cause the producing person to violate his, her, or its privacy or confidentiality
obligations to others. Where the confidential portion is reasonably separable from
the non- confidential portion, via redaction or otherwise, only the confidential
portion shall be so designated.

4.

With respect to the confidential portion of any Discovery Material other than

Case 1:19-cv-06386-CM-BCM Document 139 Filed 09/16/22 Page 3 of 10

deposition transcripts and exhibits, the producing person or that person’s counsel
may designate such portion as “Confidential” by stamping or otherwise clearly
marking as “Confidential” the document or protected portion in a manner that will
not interfere with legibility or audibility. Deposition testimony may be designated
as “Confidential” either on the record during the deposition or in writing within
five (5) business days of receipt of the transcript. If so designated, the final
transcript of the designated testimony shall be bound in a separate volume and
marked “Confidential Information Governed by Protective Order” by the reporter.
5.

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

Who May Receive Confidential Materials
6.

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

the parties to the Federal Court Liability Lawsuit;

(b)

the parties to the Federal Court Coverage Lawsuit;

(c)

the parties to the New York state court lawsuit titled Starr Indemnity &
Liability Company et al. v. Zurich American Insurance Company, et al.,
Index No.: 656346/2020 (the “State Court Coverage Action”);

Case 1:19-cv-06386-CM-BCM Document 139 Filed 09/16/22 Page 4 of 10

(d)

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

(e)

as to any document, its author, its addressee, and any other person shown
on the face of the document as having received a copy;

(f)

any witness who counsel for a party in good faith believes may be called
to testify at trial or deposition in this action, provided such person has
first executed a Non-Disclosure Agreement in the form annexed hereto;

(g)

any person retained by a party to serve as an expert witness or consultant
or otherwise provide specialized advice to counsel in connection with this
action, provided such person has first executed a Non-Disclosure
Agreement in the form annexed hereto;

(h)

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

(i)

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

(j)

the

parties’

insurers,

reinsurers,

reinsurance

intermediaries

retrocessionaires, accountants, auditors, and regulatory agencies that
request or require access to the documents;
(k)

the Court and its staff; and

(l)

any other person whom the producing person, or other person designating

Case 1:19-cv-06386-CM-BCM Document 139 Filed 09/16/22 Page 5 of 10

the Discovery Material “Confidential,” agrees in writing may have access
to such Confidential Discovery Material.
7.

Prior to the disclosure of any Confidential Discovery Material to any person
referred to in subparagraphs 8(f) or 8(g) above, such person shall be provided by
counsel with a copy of this Protective Order and shall sign a Non-Disclosure
Agreement, in the form annexed hereto, stating that that person has read this Order
and agrees to be bound by its terms. Counsel shall retain each signed NonDisclosure Agreement, hold it in escrow, and produce it to opposing counsel either
prior to such person being permitted to testify (at deposition or trial) or at the
conclusion of the case, whichever comes first.

Filing Confidential Materials in this Action
8.

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

9.

Notwithstanding the designation of material as “Confidential” in discovery, there
is no presumption that such Confidential Discovery Material will be filed with the
Court under seal. The parties shall follow § 3 of Judge Moses’s Individual
Practices with respect to pretrial requests for filing under seal.

10.

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

Case 1:19-cv-06386-CM-BCM Document 139 Filed 09/16/22 Page 6 of 10

otherwise afford confidential treatment to any Discovery Material introduced in
evidence at trial, even if such material was previously designated as Confidential
or sealed during pretrial proceedings.
11.

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

Inadvertent Disclosure of Privileged Materials
12.

If, in connection with this litigation, and despite having taken reasonable steps to
prevent the disclosure of information that it claims is subject to a claim of attorneyclient privilege or attorney work product, a producing person inadvertently
discloses information subject to a claim of attorney-client privilege or attorney
work product protection (“Inadvertently Disclosed Information”), such disclosure,
in itself, shall not constitute or be deemed a waiver or forfeiture of any claim of
privilege or work product protection with respect to the Inadvertently Disclosed
Information and its subject matter.

13.

If a disclosing person makes a claim of inadvertent disclosure, all receiving
persons shall, within five (5) business days, return or destroy all copies of the
Inadvertently Disclosed Information, and provide a certification of counsel that all
such information has been returned or destroyed.

14.

Within five (5) business days of the notification that such Inadvertently Disclosed
Information has been returned or destroyed, the disclosing person shall produce a
privilege log with respect to the Inadvertently Disclosed Information.

15.

If a receiving person thereafter moves the Court for an order compelling
production of the Inadvertently Disclosed Information, that motion shall be filed

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under seal, and shall not assert as a ground for entering such an order the mere
fact of the inadvertent production. The disclosing person retains the burden of
establishing the privileged or protected nature of any Inadvertently Disclosed
Information. Nothing in this Order shall limit the right of any party to request an
in camera review of the Inadvertently Disclosed Information.
Termination of the Litigation
16.

This Protective Order shall survive the termination of the litigation. Within 30
days of the final disposition of this action, or such additional time as the parties
may need to satisfy the requirements of their auditors, accountants, regulatory
agencies,

document

retention

policy,

insurers,

reinsurers,

reinsurance

intermediaries and/or retrocessionaires, all Confidential Discovery Material and
all copies thereof, shall be promptly returned to the producing person, or, upon
permission of the producing person, destroyed.
17.

During the pendency of this case only, this Court shall retain jurisdiction over all
persons subject to this Order to the extent necessary to enforce any obligations
arising hereunder or to impose sanctions for any contempt thereof.

SO STIPULATED.
By:__/s/ Michael S. McNamara__________
Michael S. McNamara
PILLSBURY WINTHROP SHAW
PITTMAN LLP
1200 17th Street NW
Washington, DC 20036
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for BDG Gotham Residential,
LLC and ZDG, LLC

By:__/s/ Melanie McDonald___________
Melanie McDonald
SAXE DOERNBERGER & VITA, P.C.
Two Better World Circle, Suite 200
Temecula, California 92590
Tel: [phone]
[e-mail]
Counsel for Western Waterproofing
Company, Inc. d/b/a Western
Waterproofing Specialty
Contractors

Case 1:19-cv-06386-CM-BCM Document 139 Filed 09/16/22 Page 8 of 10

By:__/s/ Michael E. Shay________________
Michael E. Shay
LAWRENCE, WORDEN, RAINIS &
BARD, P.C.
175 Pinelawn Road, Suite 308
Melville, New York 11747
Tel: [phone]
[e-mail]
Counsel for Western Waterproofing
Company, Inc. d/b/a Western
Waterproofing Specialty
Contractors

By:___/s/ Andrew M. Premisler_________
Andrew M. Premisler
LAZARE POTTER GIACOVAS &
MOYLE LLP
747 Third Avenue, 16th Floor
New York, New York 10017
Tel: [phone]
[e-mail]
Counsel for Navigators Insurance
Company

By:__/s/ John Maloney__________________
John Maloney
Jennifer L. Schoenberg
GIMIGLIANO MAURIELLO &
MALONEY, P.A.
163 Madison Avenue, Suite 500
P.O. Box 1449
Morristown, New Jersey 07962
Tel: [phone]
[e-mail]
[e-mail]
Counsel for Starr Indemnity & Liability
Company

By:__/s/ Dan D. Kohane______________
Dan D. Kohane
Thomas Casella
HURWITZ & FINE, P.C.
1300 Liberty Building
Buffalo, New York 14202
Tel: [phone]
[e-mail]
[e-mail]
Counsel for Philadelphia Indemnity
Insurance Company and Markel
American Insurance Company

By:__/s/ Michael Bono___________________
Michael Bono
Lauren Berenbaum
WADE CLARK MULCAHY LLP
Wall Street Place
88 Pine Street, Floor
New York, New York 10038
Tel: [phone]
[e-mail]
Counsel for Berkley Insurance
Company

By:___/s/ Wayne Glaubinger__________
Wayne Glaubinger
Eric Krejci
MOUND COTTON WOLLAN &
GREENGRASS LLP
One New York Plaza
New York, New York 10004
Tel: [phone]
[e-mail]
[e-mail]
Counsel for Allied World Specialty
Insurance Company

Case 1:19-cv-06386-CM-BCM Document 139 Filed 09/16/22 Page 9 of 10

By: /s/ Allen J.Ross
Allen J. Ross
John S. Wojak, Jr.
DUANE MORRIS, LLP
1540 Broadway
New York, New York 10036
Tel: [phone]
[e-mail],
[e-mail]
Counsel for BDG Gotham Residential,
LLC

By:

By:

/s/ Gregory H.Chertoff
Gregory H. Chertoff
Navid Ansari
PECKAR & ABRAMSON, P.C.
1325 Avenue of the Americas
10th Floor
New York, New York 10019
Tel: [phone]
[e-mail]
[e-mail]
Counsel for ZDG, LLC

/s/ Steven H. Rittmaster
Steven H. Rittmaster
Brian E. Gunther
TORRE, LENTZ, GAMELL, GARY
& RITTMASTER, LLP
100 Jericho Quadrangle, Suite 309
Jericho, New York 11753
Tel: [phone]
[e-mail]
[e-mail]
Counsel for Western Waterproofing
Company, Inc. d/b/a Western Specialty
Contractors and Western Surety Company

SO ORDERED.

Dated: New York, New York
September 16, 2022

BARBARA MOSES
United States Magistrate Judge

Case 1:19-cv-06386-CM-BCM Document 139 Filed 09/16/22 Page 10 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BDG GOTHAM RESIDENTIAL, LLC, ET AL
Plaintiffs,

19-CV-6386 (CM) (BCM)

- againstWESTERN WATERPROOFING COMPANY, INC.
Defendants.

WESTERN WATERPROOFING COMPANY, INC.

20-CV-03199 (CM) (BCM)
Plaintiff,
- against -

NON-DISCLOSURE AGREEMENT

ZURICH AMERICAN INSURANCE COMPANY, ET
AL
Defendants.

I,

[print name], acknowledge that I have read and

understand the Protective Order in this action governing the non-disclosure of those portions of
Discovery Material that have been designated as Confidential. I agree that I will not disclose such
Confidential Discovery Material to anyone other than for purposes of this litigation and that at the
conclusion of the litigation I will return all discovery information to the party or attorney from
whom I received it. By acknowledging these obligations under the Protective Order, I understand
that I am submitting myself to the jurisdiction of the United States District Court for the Southern
District of New York for the purpose of any issue or dispute arising hereunder and that my willful
violation of any term of the Protective Order could subject me to punishment for contempt of Court.
Dated:

_
[Signature]