Hermitage Capital Management Ltd.
Filing
10
STIPULATED AND ORDER FOR THE PROTECTION OF CONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material...This stipulation binds the parties to treat as confidential the documents so classif ied. This Court, however, has not reviewed the documents referenced herein; therefore, by so ordering this stipulation, the Court makes no finding as to whether the documents are confidential. That finding will be made, if ever, upon a document-by- document review pursuant to the procedures set forth in the Court's Individual Rules and Practices and subject to the presumption in favor of public access to "judicial documents." See generally Lugosch v. Pyramid Co. of Onondaga, 43 5 F.3d 110, 119-20 (2d Cir. 2006). To that end, the Court does not "so order" any provision to the extent that it purports to authorize the parties to file documents under seal without a prior court order. See New York ex rel. Khurana v. Spherion Corp., No. 15-CV-6605 (JMF), 2019 WL 3294170 (S.D.N.Y. July 19, 2019). (Signed by Judge Jesse M. Furman on 7/31/20) (yv)
Case 1:19-mc-00262-JMF Document 10 Filed 07/31/20 Page 1 of 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE APPLICATION OF
HERMITAGE CAPITAL MANAGEMENT
LIMITED FOR AN ORDER SEEKING
DISCOVERY PURSUANT TO 28 U.S.C. § 1782,
19-MC-262 (JMF)
STIPULATION AND [PROPOSED] ORDER FOR
THE PROTECTION OF CONFIDENTIAL INFORMATION
WHEREAS, HERMITAGE CAPITAL MANAGEMENT LIMITED (“Hermitage
- Receiving Party”) has served on NEW YORK BRANCH OF STANDARD CHARTERED
BANK, CITIBANK, N.A., BANK OF AMERICA, N.A., WELLS FARGO BANK, N.A.,
JPMORGAN CHASE BANK, N.A., BNP PARIBAS NEW YORK BRANCH, and THE BANK
OF NEW YORK MELLON (each, a “Producing Party,” collectively, the “Producing Parties,” and,
together with the “Receiving Party,” the “Parties”) Subpoenas to Produce Documents (the
“Subpoenas”) as authorized by this Court’s May 30, 2019 Order granting Hermitage’s Application
for Discovery in connection with foreign proceeding under 28 U.S.C. § 1782 (“Application”);
WHEREAS, the Parties request that this Court issue a protective order pursuant to
Federal Rule of Civil Procedure 26(c) to maintain the confidentiality of information that the
Producing Parties may produce in response to the Subpoenas;
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds good cause exists for issuance of an appropriately
tailored protective order;
IT IS HEREBY ORDERED that the Parties, including their corporate parents and
subsidiaries, successors and assigns, affiliates, directors, officers, representatives, attorneys, agents,
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Case 1:19-mc-00262-JMF Document 10 Filed 07/31/20 Page 2 of 6
employees, experts, consultants, or any person acting at the direction of the foregoing, shall adhere
to the following terms, upon pain of contempt:
1.
With respect to information produced by the Producing Parties in response
to the subpoena, any Producing Party may designate as “Confidential” pursuant to this Order such
information that it reasonably and in good faith believes consists of financial information
(including, but not limited to, records maintained in connection with financial transactions or
financial accounts), material relating to ownership or control of any non-public company; business
plans, product development information, trade secrets, documents reflecting business strategy,
business agreements, or marketing plans; or any information of a personal or intimate nature
regarding any individual; and to commercially sensitive information subject to protection under
U.S. federal or state laws, and which has not been previously disclosed (“Confidential Material”).
2.
Receiving Party may use and disclose the Confidential Material solely for
defense from the Russian proceedings, as set out in the Application (ECF No 5) and May 28, 2019
Declaration (ECF No 6) (the “Russian Proceedings”). Notwithstanding this provision, any
Producing Party may, by written agreement with the Receiving Party, agree to permit use and
disclosure of Confidential Material it has provided and which is subject to the protective order, for
additional purposes, as that Producing Party and Hermitage may agree to be appropriate.
3.
Confidential Material may be disclosed only to the following persons or
entities (“Permitted Individuals”):
(a)
Receiving Party and its counsel, including any paralegal or
administrative assistant assigned to work in connection with the Russian Proceedings;
(b)
Courts and government bodies in connection with Hermitage’s
defense of the Russian Proceedings.
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Case 1:19-mc-00262-JMF Document 10 Filed 07/31/20 Page 3 of 6
4.
The Receiving Party must take all due precautions to prevent the
unauthorized or inadvertent disclosure of such Confidential Material, including making filings
containing Confidential Material under seal or redacting Confidential Material in public filings, to
the extent permitted under applicable law.
5.
The Receiving Party shall inform the Permitted Individuals of this Order
and the confidential designation of the information and shall ensure that any Permitted Individuals
controlled or employed by or on behalf of the Receiving Party comply with the terms of this Order.
6.
The Producing Party will designate Confidential Material by stamping or
otherwise clearly marking as “Confidential” the information in a manner that will not interfere
with its legibility.
7.
The inadvertent disclosure of Confidential Material shall not be deemed a
waiver of the Producing Party’s claim of confidentiality. If a Producing Party realizes that the
discovery material was produced without the proper confidentiality designation, it may designate
it by notifying counsel for Hermitage in writing. Thereafter, all persons subject to this Order will
treat such information as Confidential.
8.
This order shall not apply to any Confidential Material subsequent to it
becoming part of the public record, or that becomes available to the Receiving Party if such source
was not a Producing Party, or that is or becomes generally available to the public other than as a
result of a violation of this Order, or that was already in Receiving Party’s possession prior to
being produced by a Producing Party.
9.
The Receiving Party shall take all due precautions to prevent the
unauthorized or inadvertent disclosure of Confidential Material.
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Case 1:19-mc-00262-JMF Document 10 Filed 07/31/20 Page 4 of 6
10.
Nothing herein shall be construed so as to prohibit the Receiving Party
from disclosing Confidential Material in its possession in response to a lawful subpoena,
government request, or compulsion of law. Should the Receiving Party be asked to produce any
Confidential Material in its possession in response to a lawful subpoena, government request, or
other compulsory process, or if it is required to produce by law or by any government agency
having jurisdiction, it shall give written notice to the Producing Party as soon as reasonably
possible, if permitted under the request, at least 21 days before any disclosure, unless providing
such notice is not in compliance with applicable law.
11.
Nothing contained in this Order shall be construed as (i) a waiver of any
right to object to any discovery request or confidentiality designation, (ii) a waiver of any privilege
or protection, or (iii) a ruling regarding the admissibility of any document or other evidence.
12.
Upon request of the Receiving Party, the Producing Party shall indicate
with particularity the reasons and grounds for confidentiality designation. The Producing Party
shall retain the burden of establishing the confidential nature of discovery material.
13.
If the Parties cannot reach agreement after reasonably conferring with one
another on matters pertaining to this Order, counsel shall address their dispute to this Court.
14.
This Order will continue to be binding upon the Parties after the
termination of the litigation arising out of and in connection with the Russian Proceedings.
15.
This Court will 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.
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Case 1:19-mc-00262-JMF Document 10 Filed 07/31/20 Page 5 of 6
SO STIPULATED AND AGREED:
STANDARD CHARTERED BANK
LAW OFFICES OF JONATHAN WINER
By: Donna K. Hill / p.p. D.P.
Donna K. Hill, Esq.
Senior Legal Counsel
Counsel for Standard Chartered Bank
(646) 845-1107
donna.hill@sc.com
By: Jonathan M. Winer
Jonathan M. Winer, Esq.
Counsel for Hermitage Capital
Management Limited
(202) 766-9918
jonathan_winer@verizon.net
Dated: July 28, 2020
New York, New York
Dated: July 15, 2020
Washington, D.C.
THE BANK OF NEW YORK MELLON
CITIBANK, N.A.
By: Mary Jane Lee / p.p. D.P.
Mary Jane Lee, Esq.
Managing Director, General Counsel
Counsel for Citibank, N.A.
(212) 816-5755
mary.jane.lee@citi.com
By: Jessica Wile Rhea / p.p. D.P.
Jessica Wile Rhea, Esq.
Counsel for
The Bank of New York Mellon
(412) 234-1508
jessica.rhea@bnymellon.com
Dated: July 28, 2020
New York, New York
Dated: July 28, 2020
Pittsburgh, Pennsylvania
BNP PARIBAS
ZEICHNER ELLMAN & KRAUSE LLP
By: Barry J. Glickman
Barry J. Glickman, Esq.
Counsel for Bank of America, N.A. and
Wells Fargo Bank, N.A.
(212) 223-0400
bglickman@zeklaw.com
By: Jessica Eiting
Jessica Eiting, Esq.
Managing Director, Group Dispute Resolution
Counsel for BNP Paribas
(212) 841-2989
jessica.eiting@us.bpparibas.com
Dated: July 28, 2020
New York, New York
Dated: July 29, 2020
New York, New York
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Case 1:19-mc-00262-JMF Document 10 Filed 07/31/20 Page 6 of 6
TUCKER LEVIN PLLC
JPMORGAN CHASE N.A.
By: Lisa A. Perez
Lisa A. Perez,
VP and Assistant General Counsel
Counsel for JPMorgan Chase
480 Washington Blvd., 23rd Floor
Jersey City, NJ 07310
lisa.a.perez@jpmorgan.com
By:
Duncan P. Levin, Esq.
Tucker Levin, PLLC
Counsel for Hermitage Capital
Management Limited:
(212) 330-7626
dlevin@tuckerlevin.com
Dated: July 28, 2020
Jersey City, New Jersey
Dated: July 27, 2020
New York, New York
__________________________________
JESSE M. FURMAN
United States District Judge
Dated: July 31, 2020
New York, New York
This stipulation binds the parties to treat as confidential the documents so classified. This Court,
however, has not reviewed the documents referenced herein; therefore, by so ordering this stipulation,
the Court makes no finding as to whether the documents are confidential. That finding will be made,
if ever, upon a document-by-document review pursuant to the procedures set forth in the Court’s
Individual Rules and Practices and subject to the presumption in favor of public access to “judicial
documents.” See generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir.
2006). To that end, the Court does not “so order” any provision to the extent that it purports to
authorize the parties to file documents under seal without a prior court order. See New York ex rel.
Khurana v. Spherion Corp., No. 15-CV-6605 (JMF), 2019 WL 3294170 (S.D.N.Y. July 19, 2019).
6
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