Reid v. Sack et al

Filing 34

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Judge Victor Marrero on 4/27/2021) (nb)

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Mark K. Anesh (MA-8303)
Jamie R. Wozman (JW-6742)
LEWIS BRISBOIS BISGAARD & SMITH, LLP
77 Water Street, 21st Floor
New York, New York 10005
Tel: [phone]
Fax: [phone]
Attorneys for Defendants

4/27/2021

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------X
BRUCE J. REID,
Plaintiff,
Civil Action No. 20-CV01817(VM)
-againstJONATHAN S. SACK, MICHAEL H. MUI, and
SACK & SACK, LLP,
Defendants,
----------------------------------------------------------------------- X
STIPULATED PROTECTIVE ORDER
Pursuant to Federal Rule of Civil Procedure 26, Plaintiff Bruce J. Reid and Defendants
Jonathan S. Sack, Michael H. Mui, and Sack & Sack, LLP (each hereinafter referred to individually
as a “Party” and collectively as the “Parties”) stipulate that the following provisions shall govern
the production and handling of documents, electronically-stored information, answers, responses,
depositions, pleadings, exhibits, and all other information and matter exchanged by the Parties or
filed with the Court throughout the proceedings in the above-captioned matter.
1.

Definitions. As used in this Stipulated Protective Order (“Order”),
a.

“Document” means any document or electronically stored information within the
scope of Fed. R. Civ. P. 34(a)(1)(A), and “electronically stored information” means
any information stored electronically, regardless of the format thereof or type of
device on which such information is accessible or stored;

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b.

“Information” means any information contained in any Document or Matter (as
defined below) or disclosed orally;

c.

“Matter” means any tangible thing;

d.

“Producing Party” means any Party or non-party who produces, uses or discloses
any Document, Matter or Information as part of discovery in this Action;

e.

“Receiving Party” means any Party who receives any Document, Matter or
Information as part of discovery in this Action; and

f.

“This Action” means the above-captioned civil action and includes all appeals of
any order, judgment or decree until the final, non-appealable disposition of all
issues raised in the above-captioned civil action.

2.

Scope of Order. This Order shall apply to all Documents, Matter and Information

disclosed, produced, exchanged, or otherwise disseminated in this Action, including without
limitation, answers to interrogatories, responses to requests for admission, depositions and
deposition transcripts. However, nothing in this Order shall limit the Parties’ respective rights to
oppose discovery of any Document, Matter or Information on grounds other than that it constitutes
“Protected Information” as such term is defined in paragraph 4 below.
3.

Binding Effect. Signature of this Order by counsel for a Party shall bind such Party’s

counsel and personnel, and such Party and its principals, shareholders, members, directors, officers
and employees.
4.

Designation of Protected Information. The Producing Party may designate such

Document, Matter or Information as “Confidential” (collectively “Protected Information”) only if
the Producing Party believes in good faith, at the time of disclosure, that such Protected
Information (i) is used by the Producing Party in or pertains to its business and is not generally

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known and would not normally be revealed to third parties; or (ii) would qualify as “confidential”
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure or any other applicable legal
standard. If the Producing Party discovers that designated material does not qualify as Protected
Information, it must promptly notify each Receiving Party that it will withdraw or change the
designation.
5.

Inadvertent Disclosure. If, through inadvertence, the Producing Party discloses any

Document, Matter or Information that it believes should have been designated “Confidential,” but
was not , it may subsequently designate it as ”Confidential,” and it shall thereafter be treated as
Protected Information. If the Receiving Party has disclosed the Protected Information to any third
party prior to the change in designation, the Receiving Party shall notify the Producing Party and
shall also make a good faith effort to have such Protected Information returned to the Producing
Party or destroyed.
6.

Designation in Depositions, Hearings, Trial and Transcripts. Any witness under

examination at a deposition, hearing or at trial, and/or his or her counsel, shall state whether or not
any Document, Matter or Information elicited or used in the course of the deposition qualifies as
Protected Information, provided, however, that the witness and/or his or her counsel, shall have
thirty (30) days from the availability of the transcript(s) of such trial or hearing within which to
designate portions thereof as Protected Information. If no designation is made during the
deposition or testimony, or if there is no designation within thirty (30) days following availability
of such transcript, then no part of the transcript (with the exception of exhibits designated as
“Confidential”) shall be treated as Protected Information. Failure to make a designation during
deposition, hearing or testimony, does not waive the right to make such designation subsequently
within 30 days as indicated above.

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7.

Disclosure of Protected Information. Protected Information may be disclosed only to:
a.

Attorneys of record who are outside counsel for the Parties; corporate counsel for
the Parties; and officers of each of the Parties who have a need to know the
Protected Information for purposes of prosecuting or defending any claim or
assisting in the making of any decision relating to this Action;

b.

Graphics or design services personnel, non-technical jury or trial consulting
services, and photocopy, document imaging and database services retained by
counsel for the Parties to assist with trial preparation or presentation, or other court
proceedings in this Action provided that each such personnel, and each such
services company has signed an undertaking in the form of Exhibit A attached to
this Order before receiving Protected Information. Each services company shall be
responsible for ensuring that its employees and staff comply in full with the
provisions of this Order;

c.

The United States District Court for the Southern District of New York, including
all of its legal and clerical personnel, or any judicial body before which this Action
is subsequently pending;

d.

Independent experts or consultants who are not directly or indirectly associated
with a Party and are engaged by outside counsel for the Parties to assist in this
Action, together with the employees, staff, or other personnel working under the
supervision of such independent experts or consultants, provided that each such
independent expert or consultant has signed an undertaking in the form of Exhibit
A attached to this Order before receiving Protected Information. Independent
experts and consultants shall be responsible for ensuring that their employees, staff,

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or other personnel working under their supervision comply in full with the
provisions of this Order;
e.

Outside stenographic court reporters; and

f.

Any deponent or other witness who authored, received, or saw the Protected
Information or who is otherwise familiar with the Protected Information.

8.

Limitations on Use of Protected Information. The Receiving Party and any other

person authorized to receive Protected Information as provided in paragraph 7 above shall use
same solely for purposes of the defense, prosecution or making decisions regarding settlement of
claims in this Action, or the arbitration entitled Bruce Reid v. ICAP Capital Markets LLC, et al.,
American Arbitration Association Case No. 01-20-0000-6422, and in a manner consistent with
this Order.
9.

Designation by a Non-Party. Any non-party, whether a person or entity, wishing to

come within the provisions of this Order when producing or disclosing any Document, Matter or
Information, shall (a) sign a statement in the form attached as Exhibit A confirming that the nonparty has read the Order and agrees to comply with its terms, and (b) properly mark the Documents,
Matter, or Information that it considers to be or to contain Protected Information at the time such
Document, Matter, or Information is produced, except that in the case of oral testimony at a
deposition, hearing or trial, Protected Information shall be designated as provided in paragraph 6
above.
10.

Exclusion from Restrictions.
a.

The restrictions set forth in this Order shall not apply to information that: (a) is
known to the Receiving Party prior to the date of disclosure as proven by the
Receiving Party’s contemporaneous business records, or (b) becomes known to the

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public following disclosure in this Action, provided that such information was not
inadvertently disclosed and subsequently designated as Protected Information as
provided in paragraph 5 above, or does not become publicly known by any act or
omission of the Receiving Party in breach of this Order.
b.

Nothing in this Order shall preclude a Party or its counsel, or any other person, from
disclosing or using, in any manner or for any purpose, any information not obtained
in discovery in this proceeding, if such information is lawfully obtained from a third
party, even though the same information may have been produced in discovery in
this Action and designated as Protected Information.

c.

Nothing in this Order shall preclude any Party or its counsel from (a) showing any
Protected Information to an individual who prepared such Protected Information;
or (b) disclosing or using, in any manner or for any purpose, any information from
the Party’s own files which the Party itself has designated as Protected Information.

11.

Filing Under Seal. The Parties anticipate that some pleadings, motions, deposition

transcripts or other papers in this Action will contain Protected Information, and that some of these
papers will need to be filed under seal because no procedure other than filing under seal will be
sufficient to preserve the confidential nature of the Protected Information. Accordingly, the Parties
agree to the following procedures.
Efforts to Minimize Requests for Sealing. The Parties agree that they shall make best efforts to
limit sealing requests.
Requests for Sealing. The Parties must obtain leave of the Court before filing any document under
seal. The sealing request shall include (1) one full set of the documents with the words, phrases,
or paragraphs to be redacted highlighted; (2) one partial set of solely those pages on which the

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Party seeks to redact material. If leave is granted, redacted copies of such documents must be filed
with the Clerk of Court and may not be filed electronically.
12.

Objection to Designation. A Party may object at any time to the designation of any

Protected Information by giving written notice (“Notice of Objection”) to the Producing Party by
email. The Notice of Objection shall identify the Protected Information to which the objection is
made and a response to the Notice of Objection (a “Response”) shall be given by the Producing
Party to the objecting Party, by email, within fourteen (14) days following receipt of the Notice of
Objection. If the Parties cannot resolve the objection within seven (7) days following the date of
Response, the Producing Party shall seek to schedule a telephone conference for the Parties to
resolve the objection before the Magistrate Judge. Such conference shall be scheduled to take place
within fourteen (14) days following the date of the Notice of Objection or as soon thereafter as the
Magistrate Judge can hear the matter. If a telephone conference is scheduled, the disputed
Protected Information shall be treated as Protected Information until the Parties resolve their
dispute or the Court rules on a motion. If the Producing Party fails to schedule a telephone
conference as aforesaid, the disputed Protected Information shall lose its designation as Protected
Information and shall thereafter not be treated as such. In connection with any dispute pursuant to
this paragraph 12, the Producing Party shall bear the burden of establishing that good cause exists
for the disputed Document, Matter, or Information to be treated as Protected Information.
13.

Use of Protected Information in Court Proceedings. The Parties shall confer and

attempt to agree, before any trial or other hearing, on the procedures and conditions under which
Protected Information may be introduced into evidence or otherwise used at such trial or hearing.
Absent agreement, either Party may ask the Court to issue an order governing the use of such

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Protected Information at trial or hearing, upon reasonable notice to all disclosing parties who have
produced such information.
14.

Survival. The non-disclosure obligations of this Order shall survive the final, non-

appealable disposition of this Action.
15.

Obligations on Termination of Action. Within thirty (30) days of the conclusion of

this Action by final, non-appealable disposition, each Party shall assemble all Protected
Information received by it and (a) at the Producing Party’s option, return the Protected Information
at the Producing Party’s expense or destroy all Protected Information that is in non-electronic form,
and (b) destroy all Protected Information that is in electronic form, except that counsel shall be
permitted to retain court filings, deposition transcripts, exhibits, and work product containing
Protected Information, provided that such counsel and its personnel shall not disclose such retained
materials to any person or use such retained materials for any purpose unrelated to this Action
except pursuant to court order or written authorization by the Producing Party. Notwithstanding
any of the foregoing, the Parties, their counsel, and experts for the Parties shall not be required to
return or destroy any Protected Information to the extent such Protected Information is (a) stored
on media that is not reasonably accessible, such as disaster recovery backup tapes or discs, or (b)
only retrievable through the use of specialized tools or techniques typically used by forensic
experts.
16.

Disclosure Pursuant to Legal Process. If a Receiving Party in possession, custody, or

control of Protected Information is served with a subpoena, demand, or any other legal process
seeking discovery of same by a non-party (a “Demand”), the Receiving Party shall give written
notice to the Producing Party by email within 3 business days of its receipt of such Demand if the
provision of notice is not forbidden by law or legal authorities. The Producing Party shall be solely

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responsible for seeking any relief or protection from any subpoena demand or legal process
seeking such Protected Information and shall also be solely responsible for its costs and attorneys’
fees in any proceedings relating to such subpoena or legal process.
17.

Relief from this Order.
a.

Nothing in this Order shall prevent the Parties from applying to the Court for relief
from this Order, or from applying to the Court for further or additional protective
orders, or from agreeing among themselves to waive this Order in part or whole as
to particular designated information.

b.

This Order may be modified by the Court at any time for good cause shown
following notice to all Parties and an opportunity for them to be heard.

18.

Jurisdiction. This Court shall retain jurisdiction over any action or proceeding arising

out of or related to this Order. Each Producing Party and each Receiving Party or non-party
receiving Protected Information agrees that it/he/she is subject to the jurisdiction of and bound by
this Court for all of the foregoing purposes.
SO ORDERED:
SO ORDERED:
RDERED
4/27/2021

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SO STIPULATED AND AGREED:
Dated: April 21, 2021
McLAUGHLIN & STERN, LLP

LEWIS BRISBOIS BISGAARD
& SMITH LLP

By: _____________________________
Chester R. Ostrowski
Lee S. Shalov

By:__________________________________
___________
Mark K A h Esq.
k K. Anesh,
Jamie R. Wozman, Esq.
Attorneys for Defendants Jonathan
Sack,Esq. Michael Mui, Esq. and Sack &
Sack, LLP
77 Water Street, Suite 2100
New York, New York 10005
[phone]

Attorneys for Plaintiff Bruce J. Reid
260 Madison Avenue
New York, New York 100016
[phone]

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Exhibit A
Acknowledgement and Agreement to be Bound
I, __________________________________________, of ________________________,
declare under penalty of perjury that:
1. I have read and understood in its entirety the Stipulated Protective Order (the “Order”)
that was entered by the Hon. Judge Victor Marrero, of the United States District Court, Southern
District of New York, on April__, 2021, in Bruce J. Reid v. Jonathan S. Sack, et. al. No. 20-cv01817(VM) (the “Action”);
2. I shall comply with and be bound by all the terms of the Order;
3. I understand and acknowledge that my failure to comply with the Order could expose
me to sanctions and punishment in the nature of contempt;
4. I represent and warrant that I will not disclose any Documents, Matter or Information
that has been designated as Protected Information (as such terms are defined in the Order) to any
person or entity except in strict compliance with the Order;
5. I hereby submit to the personal jurisdiction of the United States District Court for the
Southern District of New York, even if proceedings to enforce the terms of the Order occur after
final judgment or other termination of the Action, and hereby waive any claims I may now or
hereafter have with respect to such jurisdiction.
Date: ______________
City and State where sworn and signed: ___________________________
Printed Name: ______________________________
Signature: __________________________________

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