McGucken v. Newsweek LLC et al

Filing 47

STIPULATION AND AGREED UPON PROTECTIVE ORDER REGARDINGCONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material...This stipulation does not bind the Court or any of its personnel. The Court can modify this stipulation at any time. With respect to paragraph 14 ofthe stipulation, the Court notes that it will retain jurisdiction over theterms and conditions of this agreement only for the pendency of thislitigation. Any party wishing to make redacted or sealed submissions shallcomply with Rule 6(A) of this Court's Individual Rules of Civil Procedure. (Signed by Judge Katherine Polk Failla on 1/6/2021) (rro)

Case 1:19-cv-09617-KPF Document 47 Filed 01/06/21 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELLIOT MCGUCKEN, an individual,
Plaintiff,
v.
NEWSWEEK LLC, a New York Limited
Liability Company; and DOES 1-10, inclusive,

Civil Action No.: 1:19-cv-09617-KPF

MEMO ENDORSED

Defendants.

STIPULATION AND AGREED UPON PROTECTIVE ORDER REGARDING
CONFIDENTIAL INFORMATION
Pursuant to Fed.R.Civ.P. 26(c), the parties to this lawsuit, through undersigned counsel,
jointly submit this Stipulated Protective Order to govern the handling of information and
materials produced in the course of discovery or filed with the Court in this action;
GOOD CAUSE STATEMENT
It is the intent of the parties and the Court that information will not be designated as
confidential for tactical reasons in this case and that nothing shall be designated without a good
faith belief that there is good cause why it should not be part of the public record of this case.
Examples of confidential information that the parties may seek to protect from unrestricted or
unprotected disclosure include:
(a)

Information that is the subject of a non-disclosure or confidentiality
agreement or obligation;

(b)

The names, or other information tending to reveal the identity of a party’s
supplier, designer, distributor, or customer;

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(c)

Agreements with third-parties, including license agreements, distributor
agreements, manufacturing agreements, design agreements, development
agreements, supply agreements, sales agreements, or service agreements;

(d)

Research and development information;

(e)

Proprietary engineering or technical information, including product
design, manufacturing techniques, processing information, drawings,
memoranda and reports;

(f)

Information related to budgets, sales, profits, costs, margins, licensing of
technology or designs, product pricing, or other internal
financial/accounting information, including non-public information related
to financial condition or performance and income or other non-public tax
information;

(g)

Information related to internal operations including personnel information;

(h)

Information related to past, current and future product development;

(i)

Information related to past, current and future market analyses and
business and marketing development, including plans, strategies, forecasts
and competition; and

(j)

Trade secrets.

Unrestricted or unprotected disclosure of such confidential technical, commercial or
personal information would result in prejudice or harm to the producing party by revealing the
producing party’s competitive confidential information, which has been developed at the expense
of the producing party and which represents valuable tangible and intangible assets of that party.

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Additionally, privacy interests must be safeguarded. Accordingly, the parties respectfully submit
that there is good cause for the entry of this Protective Order.
The parties agree, subject to the Court’s approval, that the following terms and conditions
shall apply to this civil action. Until such time as the Court approves this Protective Order, the
parties stipulate and agree that they will comply with the terms herein so as to not delay
discovery.
1.

Designated Material.

1.1

Information or material may be designated for confidential treatment pursuant to

this Protective Order by any party, person or entity producing or lodging it in this action (the
“Designating Party”), if: (a) produced or served, formally or informally, pursuant to the Federal
Rules of Civil Procedure, Court Order, or in response to any other formal or informal discovery
request in this action; and/or (b) filed or lodged with the Court. All such information and
material and all information or material derived from it constitutes “Designated Material” under
this Protective Order.
1.2

Unless and until otherwise ordered by the Court or agreed to in writing by the

parties, all Designated Materials designated under this Protective Order shall be used by the
parties and persons receiving such Designated Materials solely for conducting the abovecaptioned litigation and any appellate proceeding relating thereto. Designated Material shall not
be used by any party or person receiving them for any business or any other purpose. No party
or person shall disclose Designated Material to any other party or person not entitled to receive
such Designated Material under the specific terms of this Protective Order. For purposes of this
Protective Order, “disclose” or “disclosed” means to show, furnish, reveal or provide, indirectly

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01/06/21

or directly, any portion of the Designated Material or its contents, orally or in writing, including
the original or any copy of the Designated Material.
2.

Access to Designated Materials.

2.1

Materials Designated “CONFIDENTIAL”: Subject to the limitations set forth in

this Protective Order, Designated Material may be marked “CONFIDENTIAL” for the purpose
of preventing the disclosure of information or materials that the designating party in good faith
believes is confidential. Before designating any specific information or material
“CONFIDENTIAL,” the Designating Party’s counsel shall make a good faith determination that
the information warrants protection under Rule 26(c) of the Federal Rules of Civil Procedure.
Such information may include, but is not limited to:
(a)

The financial performance or results of the Designating Party, including without

limitation income statements, balance sheets, cash flow analyses, budget projections, and present
value calculations;
(b)

Corporate and strategic planning by the Designating Party, including without

limitation marketing plans, competitive intelligence reports, sales projections and competitive
strategy documents;
(c)

Names, addresses, and other information that would identify customers or

prospective customers, or the distributors or prospective distributors of the Designating Party;
(d)

Technical data, research and development data, and any other confidential

commercial information, including but not limited to trade secrets of the Designating Party;
(e)

Information used by the Designating Party in or pertaining to its trade or business,

which information the Designating Party believes in good faith has competitive value, which is

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not generally known to others and which the Designating Party would not normally reveal to
third parties except in confidence, or has undertaken with others to maintain in confidence;
(f)

Information which the Designating Party believes in good faith falls within the

right to privacy guaranteed by the laws of the United States or the State of New York; and
(g)

Information which the Designating Party believes in good faith to constitute,

contain, reveal or reflect proprietary, financial, business, technical, or other sensitive
information.
(h)

The fact that an item or category is listed as an example in this or other sections of

this Protective Order does not, by itself, render the item or category discoverable.
2.1.1

Materials designated “CONFIDENTIAL” may be disclosed only to the following

Designees:
2.1.2

Persons who appear on the face of Designated Materials marked

“CONFIDENTIAL” as an author, addressee, or recipient thereof, said disclosure limited to the
portion of the Designated Material to which the person had prior access as an author, addressee,
or recipient;
2.1.3

Counsel retained as outside litigation attorneys of record in this action, and their

respective associates, clerks, legal assistants, stenographic, videographic and support personnel,
and other employees of such outside litigation attorneys, and organizations retained by such
attorneys to provide litigation support services in this action and the employees of said
organizations.
2.1.4

Consultants, including non-party experts and consultants retained or employed by

Counsel to assist in the preparation of the case, to the extent they are reasonably necessary to
render professional services in this action, and subject to the disclosure requirements of section

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2.3. Each consultant must sign a certification that he or she has read this Stipulated Protective
Order, will abide by its provisions, and will submit to the jurisdiction of this Court regarding the
enforcement of this Order’s provisions.
2.1.5 A party’s officers and/or employees, which may include in-house counsel.
2.1.6 The Court, its clerks and secretaries, and any court reporter retained to record
proceedings before the Court;
2.2

Materials Designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY”: Subject to the limitations in this Protective Order, Designated Materials may be
marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” for the purpose of
preventing the disclosure of information or materials which, if disclosed to the receiving party,
might cause competitive harm to the Designating Party. Information and material that may be
subject to this protection includes, but is not limited to, technical and/or research and
development data, intellectual property, financial, marketing and other sales data, and/or
information having strategic commercial value pertaining to the Designating Party’s trade or
business. Nothing in paragraph 2.1 shall limit the information or material that can be designated
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under this paragraph. Before
designating any specific information “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY,” the Designating Party’s counsel shall make a good faith determination that the
information warrants such protection.
2.2.1 Materials designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” materials may be disclosed only to the following Designees:
2.2.2 Persons who appear on the face of Designated Materials marked “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as an author, addressee, or recipient thereof,

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said disclosure limited to the portion of the Designated Material to which the person had prior
access as an author, addressee, or recipient;
2.2.3

Counsel for the parties to this action, as defined in section 2.1.2;

2.2.4

Consultants for the parties to this action, as defined in section 2.1.3; and

2.2.5

The Court, its clerks and secretaries, and any court reporter retained to record

proceedings before the Court.
2.2.6

Court reporters retained to transcribe depositions.

2.3

If any party wishes to disclose information or materials designated under this

Protective Order as “HIGHLY CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” to any Consultant, it must first identify that individual to the Counsel for the
Designating Party and submit a Certification of Consultant pursuant to Section 3. No disclosure
may occur for a period of seven (7) days from the Designating Party’s receipt of the
Certification. If, during those seven (7) days, the Designating Party does not object to the
designation or the Designating Party consents in writing, disclosure may proceed under this
Protective Order. If the Designating Party objects to allowing access by the Consultant to
Designated Material and the parties are unable to reach an agreement within fourteen (14) days
after the Designating Party’s receipt of the Certification, the party wishing to disclose Designated
Material must seek the assistance of the Court within seven (7) days.
2.4

Legal Effect of Designation. The designation of any information or materials as

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” is intended
solely to facilitate the conduct of this litigation. Neither such designation nor treatment in
conformity with such designation shall be construed in any way as an admission or agreement by
any party that the Designated Materials constitute or contain any trade secret or confidential

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information. Except as provided in this Protective Order, no party to this action shall be
obligated to challenge the propriety of any designation, and a failure to do so shall not preclude a
subsequent attack on the propriety of such designation.
2.5

Nothing herein in any way restricts the ability of the receiving party to use

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material
produced to it in examining or cross-examining any current employee or Consultant of the
Designating Party.
3.

Certificates Concerning Designated Materials. Each Consultant as defined in

section 2.1.3, to whom any Designated Materials will be disclosed shall, prior to disclosure of
such material, execute the Acknowledgement of Stipulated Protective Order in the form attached
hereto as Exhibit A. Counsel who makes any disclosure of Designated Materials shall retain
each executed Acknowledgement of Stipulated Protective Order and shall circulate copies to all
Counsel for the opposing party concurrently with the identification of the Consultant to the
attorneys for the Designating Party pursuant to Section 2.3.
4.

Use of Designated Materials by Designating Party. Nothing in this Protective

Order shall limit a Designating Party’s use of its own information or materials, or prevent a
Designating Party from disclosing its own information or materials to any person. Such
disclosure shall not affect any designations made pursuant to the terms of this Protective Order,
so long as the disclosure is made in a manner that is reasonably calculated to maintain the
confidentiality of the information.
5.

Manner of Designating Written Materials.

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5.1

Documents, discovery responses and other written materials shall be designated

as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” whether
in whole or in part, as follows.
5.2

The producing party shall designate materials by placing the legend

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on each
page so designated prior to production or, in the case of electronically stored information
produced in native format, on a placeholder page and/or in the file name of the native file. If the
first or cover page of a multi-page document or a native file name bears the legend
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the entire
document or file shall be deemed so designated, and the absence of marking each page shall not
constitute a waiver of the terms of this Order. If the label affixed to storage media containing
multiple files bears the legend “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” the entire storage media shall be deemed so protected, and the absence of marking of
each file shall not constitute a waiver of the terms of this Order.
5.3

A designation of ““CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” as to any item, thing or object that cannot otherwise be
categorized as a document, shall be made: (1) by placing the legend “CONFIDENTIAL,” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on the thing, object or container
within which it is stored; or (2) by specifically identifying, in writing, the item and the level of
confidentiality designation, where such labeling is not feasible.
5.4

When a party wishes to designate as “CONFIDENTIAL,” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” materials produced by someone other than
the Designating Party (a “Producing Party”), such designation shall be made:

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5.4.1

Within fifteen (15) business days from the date that the Designating Party

receives copies of the materials from the producing or disclosing entity; and
5.4.2 By notice to all parties to this action and to the Producing Party, if such party is
not a party to this action, identifying the materials to be designated with particularity (either by
production numbers or by providing other adequate identification of the specific material). Such
notice shall be sent by facsimile and regular mail.
5.4.3

A party shall be permitted to designate as “CONFIDENTIAL,” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material produced by a Producing Party
only where:
a. The material being produced was provided to or developed by such Producing Party:
(i) under a written confidentiality agreement with the Designating Party; (ii) within a relationship
with the Designating Party (or a party operating under the control thereof) in which
confidentiality is imposed by law (including, but not limited, to the employment relationship and
the vendor-customer relationship); or (iii) under circumstances in which an obligation of
confidentiality may be inferred or implied, and
b. The material being produced would be considered confidential material of the
Designating Party under Section 2.1 of this Agreement if it were in the possession of the
Designating Party.
5.5

Upon notice of designation, all persons receiving notice of the requested

designation of materials shall:
5.5.1

Make no further disclosure of such Designated Material or information contained

therein, except as allowed in this Protective Order;

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5.5.2

Take reasonable steps to notify any persons known to have possession of or

access to such Designated Materials of the effect of such designation under this Protective Order;
and
5.5.3 If “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” material or information contained therein is disclosed to any person other than those
entitled to disclosure in the manner authorized by this Protective Order, the party responsible for
the disclosure shall, immediately upon learning of such disclosure, inform the Designating Party
in writing of all pertinent facts relating to such disclosure, and shall make every effort to prevent
further disclosure by the unauthorized person(s).
6.

Manner of Designating Deposition Testimony.

6.1

Deposition transcripts and portions thereof taken in this action may be designated

as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
during the deposition or after, in which case the portion of the transcript containing Designated
Material shall be identified in the transcript by the Court Reporter as “CONFIDENTIAL,” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The designated testimony shall
be bound in a separate volume and marked by the reporter accordingly.
6.2

Where testimony is designated during the deposition, the Designating Party shall

have the right to exclude, at those portions of the deposition, all persons not authorized by the
terms of this Protective Order to receive such Designated Material.
6.3

Within thirty (30) days after a deposition transcript is certified by the court

reporter, any party may designate pages of the transcript and/or its exhibits as Designated
Material. During such thirty (30) day period, the transcript in its entirety shall be treated as
“CONFIDENTIAL” (except for those portions identified earlier as “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY” which shall be treated accordingly from the date of
designation). If any party so designates such material, the parties shall provide written notice of
such designation to all parties within the thirty (30) day period. Designated Material within the
deposition transcript or the exhibits thereto may be identified in writing by page and line, or by
underlining and marking such portions “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” and providing such marked-up portions to all counsel.
7.

Copies. All complete or partial copies of a document that disclose Designated

Materials shall be subject to the terms of this Protective Order.
8.

Court Procedures.

8.1

Disclosure of Designated Material to Court Officials. Subject to the provisions of

this section, Designated Material may be disclosed to the Court, Court officials or employees
involved in this action (including court reporters, persons operating video recording equipment at
depositions, and any special master, referee, expert, technical advisor or Third-Party Consultant
appointed by the Court), and to the jury in this action, and any interpreters interpreting on behalf
of any party or deponent.
8.2

Retrieval of Designated Materials. The party responsible for lodging or filing the

Designated Materials shall be responsible for retrieving such Designated Materials from the
Court following the final termination of the action (including after any appeals).
9.

Objections

9.1

A party may challenge any designation under this Protective Order at any time, on

the grounds that the information or material does not meet the standards of Sections 1 and 2 by
following the procedures set forth in the Local Rules and/or the Judge’s Individual Rules.

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9.2

The parties shall meet and confer in good faith prior to the filing of any objection

motion.
10.

Client Communication. Nothing in this Protective Order shall prevent or

otherwise restrict counsel from rendering advice to their clients and, in the course of rendering
such advice, relying upon the examination of Designated Material. In rendering such advice and
otherwise communicating with the client, however, counsel shall not disclose any Designated
Material, except as otherwise permitted by this Protective Order.
11.

No Prejudice.

11.1

This Protective Order shall not diminish any existing obligation or right with

respect to Designated Material, nor shall it prevent a disclosure to which the Designating Party
consented in writing before the disclosure takes place.
11.2

Unless the parties stipulate otherwise, evidence of the existence or nonexistence

of a designation under this Protective Order shall not be admissible for any purpose during any
proceeding on the merits of this action.
11.3

If any party required to produce documents contends that it inadvertently

produced any Designated Material without marking it with the appropriate legend, or
inadvertently produced any Designated Material with an incorrect legend, the producing party
may give written notice to the receiving party or parties, including appropriately stamped
substitute copies of the Designated Material. Within five (5) business days of receipt of the
substitute copies, the receiving party shall return the previously unmarked or mismarked items
and all copies thereof.
11.4

Any inadvertent production of documents containing privileged information shall

not be deemed to be a waiver of the attorney-client privilege, work product doctrine, or any other

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applicable privilege or doctrines. All parties specifically reserve the right to demand the return
of any privileged documents that it may produce inadvertently during discovery if the producing
party determines that such documents contain privileged information. After receiving notice of
such inadvertent production by the producing party, the receiving party agrees to make
reasonable and good faith efforts to locate and return to the producing party all such
inadvertently produced documents.
12.

Modification and Survival.

12.1

Modification. The parties reserve the right to seek modification of this Protective

Order at any time for good cause. The parties agree to meet and confer prior to seeking to
modify this Protective Order for any reason. The restrictions imposed by this Protective Order
may only be modified or terminated by written stipulation of all parties or by order of this Court.
Parties entering into this Protective Order will not be deemed to have waived any of their rights
to seek later amendment to this Protective Order.
12.2

Trial. The parties understand that this Protective Order does not extend to trial of

this Action. Once the case proceeds to trial, all of the information that was designated as
confidential and/or kept and maintained pursuant to the terms of this Protective Order becomes
public and will be presumptively available to all members of the public, including the press,
unless good cause is shown to the district judge in advance of the trial to proceed otherwise.
12.3

Survival and Return of Designated Material. This Protective Order shall survive

termination of this action prior to trial of this action. Upon final termination of the action prior
to trial of this action, and at the written request of the Designating Party, all Designated Material,
including deposition testimony, and all copies thereof, shall be returned to counsel for the
Designating Party or destroyed by the receiving party to the extent reasonably technically

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possible. The duty to destroy Designated Material shall not extend to electronically stored
information contained in the archives of the receiving party, a copy of any motions, memoranda,
or orders made part of the Court record, or electronically stored attorney work product that is
maintained confidentially. Upon request for the return or destruction of Designated Materials,
counsel shall certify their compliance with this provision and shall serve such certification to
counsel for the Designating Party not more than ninety (90) days after the written request to
return or destroy Designated Materials. Counsel who have submitted one or more Certificate(s)
prepared pursuant to Section 3 do not need to retain such Certificate(s) past the ninety (90) day
period.
13.

No Contract. This Protective Order shall not be construed to create a contract

between the parties or between the parties and their respective counsel.
14.

Court’s Retention of Jurisdiction. The Court retains jurisdiction after final

termination of the action prior to trial, to enforce this Stipulation.
15.

Exception for Public Information. Nothing in this Stipulation shall be deemed in

any way to restrict the use of documents or information which are lawfully obtained or publicly
available to a party independently of discovery in this action, whether or not the same material
has been obtained during the course of discovery in the action and whether or not such
documents or information have been designated hereunder. However, in the event of a dispute
regarding such independent acquisition, a party wishing to use any independently acquired
documents or information shall bear the burden of proving independent acquisition.
16.

Any material designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” by a party that is created by a Designating Party will be deemed
by the Designating Party to this agreement to be an authentic record of the Designating Party for

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purposes of Federal Rules of Evidence 901 and 903 only, and the Designating Party will be
precluded from challenging the authenticity of any document so designated as a record of the
Designating Party at any time during this litigation, including during any necessary collection or
appeal proceedings. This stipulation is not a stipulation that documents created by someone
other than the Designating Party are authentic for the purposes of Federal Rules of Evidence 901
or 903.

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STIPULATION
IT IS HEREBY STIPULATED by and among the parties, through their respective
counsel, this Honorable Court consenting, that the foregoing Stipulated Protective Order may be
entered in this action.
SO STIPULATED.
Dated: January 5, 2021

By:

/s/ Scott Alan Burroughs
Scott Alan Burroughs
DONIGER / BURROUGHS
Attorneys for Plaintiff Elliot McGucken

Dated: January 5, 2021

By:

/s/ Nancy E. Wolff
Nancy E. Wolff
COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLC
Attorneys for Defendant Newsweek Digital LLC

SO ORDERED.
Dated: New York, New York
January 6, 2021
______________________________________
Hon. Katherine Polk Failla
United States District Judge

This stipulation does not bind the Court or any of its personnel. The Court
can modify this stipulation at any time. With respect to paragraph 14 of
the stipulation, the Court notes that it will retain jurisdiction over the
terms and conditions of this agreement only for the pendency of this
litigation. Any party wishing to make redacted or sealed submissions shall
comply with Rule 6(A) of this Court's Individual Rules of Civil Procedure.

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EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Civil Action No.: 1:19-cv-09617-KPF

ELLIOT MCGUCKEN, an individual,
Plaintiff,
v.
NEWSWEEK LLC, a New York Limited
Liability Company; and DOES 1-10, inclusive,
Defendants.

The undersigned hereby acknowledges that he/she has read the STIPULATED
PROTECTIVE ORDER entered in the above captioned litigation, and that he/she fully
understands and agrees to abide by the obligations and conditions thereof.
Dated: _____________________

______________________________
(Signature)
______________________________
(Print Name)

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