Wilmington Trust, N.A. v. Stout Risius Ross, Inc.

Filing 44

CONFIDENTIALITY STIPULATION AND ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Judge Louis L. Stanton on 6/3/2021) (rro)

.ii...

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

WILMINGTON TRUST, N.A., as successor to Wilmington
Trust Retirement and Institutional Services Company,

·USDC SD~Y
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEF-IL_E_D_:__,.._ ,...........! /j / 2, /

Plaintiff,
-against-

Civil Case No.:
1:20-cv-02505-LLS-KHP

STOUT RISIUS ROSS, INC.,
Defendant.

CONFIDENTIALITY STIPULATION AND ORDER
The Court enters this Confidentiality Stipulation and Order ("Stipulation and
Order") upon the request of the plaintiff Wilmington Trust, N .A., and the defendant Stout Risius
Ross, Inc. (together, the "Parties," or individually, a "Party"), for the purpose of assuring the
confidentiality and protection of confidential information that may be disclosed in the course of
discovery proceedings by the Parties or, as appropriate, any non-party to this action.

1.

As used in this Stipulation and Order, the term "Confidential Information"

includes any material or information ("Material") that is disclosed in the course of discovery
proceedings in this action by the Parties or, as appropriate, any non-party that is deemed in good
faith by the disclosing party to contain (a) trade secrets, competitively sensitive technical,
marketing, financial, sales or other confidential business information; (b) private or confidential
personal or customer information; or (c) infonnation received in confidence from third parties.
Any Party to this litigation and any disclosing non-party shall have the right to designate such

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 2 of 13

Confidential Information as "Confidential" or "Highly Confidential - Attorney's Eyes Only," as
that designation is defined in Paragraph 2.
2.

As used in this Stipulation and Order, "Highly Confidential - Attorney's

Eyes Only" includes any Confidential Information that is deemed in good faith by the disclosing
party to contain highly sensitive business, personal, or customer information, the disclosure of
which is highly likely to cause significant harm to an individual or to the business or competitive
position of the designating party. "Highly Confidential - Attorney's Eyes Only" shall not be
used as a designation for information or items that have previously been disclosed to personnel
of either Party who are not attorneys for that Party.
3.

A Party or non-party producing Confidential Information shall, at or

before the time of disclosure, designate such Confidential Information as "Confidential" or
"Highly Confidential-Attorney's Eyes Only" in one or more of the following ways:
a.

Information set forth in an answer to an interrogatory may be so
designated by including a clear statement in the answer that the
answer is "Confidential" or "Highly Confidential -Attorney's
Eyes Only."

b.

Information contained in any document or part thereof may be so
designated by marking the words "Confidential" or "Highly
Confidential-Attorney's Eyes Only" on each page of the
document and all copies of it.

c.

Information contained in an answer to any question asked during
an oral deposition may be designated "Confidential" or "Highly

2

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 3 of 13

Confidential -Attorney's Eyes Only" by a statement made on the
record during the course of the deposition on the same day that the
answer is given or by a writing served by e-mail or first class mail
within thirty days ofreceiving the deposition transcript. All
testimony shall be deemed "Confidential" until that 30-day period
has expired. After that 30-day period has expired, only that
testimony that has been designated as "Confidential" or "Highly
Confidential - Attorney's Eyes Only" according to the above-listed
procedures shall be deemed "Confidential" or "Highly
Confidential - Attorney's Eyes Only" in accordance with this
Stipulation and Order. The court reporter or stenographer shall
bind the "Confidential" or "Highly Confidential -Attorney's Eyes
Only" testimony in separate volumes and mark the face of the
transcript to indicate its confidential nature and production
pursuant to this Stipulation and Order.
4.

Confidential Information disclosed during the course of discovery

proceedings in this action shall be subject to the following requirements:
a.

Confidential Information shall be used only for purposes of this
action.

b.

Confidential Information shall not be published to the general
public in any form or used for any business or commercial
purposes.

3

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 4 of 13

c.

Confidential Information shall be disclosed only to the following
persons and only insofar as it is reasonably necessary to the
prosecution or defense of this action:
(1)

A Party and its employees, officers, and directors to whom
disclosure is reasonably necessary for purposes of the
litigation;

(2)

Attorneys ofrecord for the Party, including any attorneys
employed or retained by a law firm of record that
represents the Party and in-house counsel for a Party;

(3)

Secretarial, clerical, and paralegal personnel employed fulltime or part-time by attorneys or a law firm that represents
the Party seeking the information;

(4)

Independent expert witnesses, advisors, and consultants
retained in connection with this action, and their full or
part-time technical, secretarial, or clerical staff, or other
personnel;

(5)

Non-party witnesses to whom disclosure is reasonably
necessary for purposes of the litigation, but only to the
extent that such witnesses agree to be bound by the terms
of this Stipulation and Order;

(6)

Court reporters or stenographers engaged to record
deposition testimony, and their employees; and
4

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 5 of 13

(7)

Such other persons as may be authorized by agreement of
the Parties or disclosing non-party or by the Court upon
motion of any Party.

d.

If Confidential Information is disclosed to any person other than in
the manner authorized by this Stipulation and Order, the person
responsible for the disclosure shall, immediately upon learning of
such disclosure, inform the disclosing Party or non-party of all
pertinent facts relating to such disclosures and use their best efforts
to retrieve the Confidential Information.

e.

Confidential Information shall not be electronically transmitted or
physically transported to anywhere outside the United States of
America.

5.

A copy of this Stipulation and Order shall be delivered to each person

within categories 4, 5, and 7 of paragraph 4( c) above to whom a disclosure of Confidential
Information is made, at or before the time of disclosure, and no disclosure shall be made to such
person unless and until such person agrees in writing to be bound by the provisions of this
Stipulation and Order as provided in the "Agreement to be Bound by Confidentiality Stipulation

and Order" attached as Exhibit A.
6.

Confidential Information designated as "Highly Confidential - Attorney's

Eyes Only" that is disclosed during the course of discovery proceedings in this action may not be
disclosed to any persons listed in paragraph 4(c)(l) of this Stipulation and Order (a party, its
employees, officers, and directors), except for in-house counsel for a Party, unless expressly
authorized by the disclosing Party or non-party. All other provisions of this Stipulation and

5

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 6 of 13

Order that apply to Confidential Information generally shall apply to Confidential Information
designated as "Highly Confidential -Attorney's Eyes Only."
7.

Any person who receives Confidential Information pursuant to this

Stipulation and Order may not disclose that information except to the persons designated
hereinabove and to the extent permitted herein.
8.

Secondary documents, including but not limited to, notes, memoranda,

analyses, and briefs that are prepared from any Material that contains Confidential Information
shall be treated in the same fashion as the underlying Material.
9.

With respect to any Material designated as "Confidential" or "Highly

Confidential -Attorney's Eyes Only," the receiving Party may at any time notify the designating
Party or non-party in writing that the receiving Party objects to the designation and must provide
the basis for the objection. Counsel for the designating Party or non-party shall respond in
writing to such objection within 14 days, and shall state with particularity the grounds for
asserting that the document or information is properly designated as "Confidential" or "Highly
Confidential-Attorney's Eyes Only." If no timely written response is made to the objection, the
challenged designation will be deemed void unless good cause is shown. The designating Party
or non-party and the receiving Party shall then confer in good faith in an effort to resolve their

disagreement. If the parties cannot resolve their disagreement, the receiving Party shall present
the dispute to the Court either by letter or motion, in accordance with the Court's practices and
rules, seeking to remove the confidential designation. The Confidential Information that is the
subject of the disagreement shall be treated as originally designated pending resolution of the
dispute.

6

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 7 of 13

10.

The obligation of confidentiality under this Stipulation and Order shall not

apply to Material: (i) which is or has become public knowledge other than as a direct or indirect
result of the information being disclosed in breach of this Stipulation and Order; (ii) which is
already known to the receiving Party prior to such disclosure or is disclosed to the receiving
Party by a person having no duty of confidentiality with respect to such information; and (iii) to
the extent that such disclosure is required by any law or regulation, any order of any court of
competent jurisdiction or any competent judicial, governmental or regulatory body, or by the
law, subject to paragraph 17 below.
11.

The provisions of this Stipulation and Order shall not be construed as

preventing:
a.

Any disclosure of Confidential Information by the parties
designating the information as such in any other action; or

b.

Any disclosure of Confidential Information to any judge, law
clerk, or employee of this Court for purposes of this action, subject
to paragraph 12 below.

12.

All Confidential Information that is filed with the Court, and any

pleadings, motions, or other papers filed with the Court disclosing Confidential Information,
shall be filed under seal and kept under seal until further order of the Court. Where possible,
only "Confidential" or "Highly Confidential - Attorney's Eyes Only" portions of filings with the
Court shall be filed under seal.
13.

The inadvertent production of information or documents by a Party or

non-party shall not in itself be deemed to waive any claim of attorney-client privilege, attorney

7

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 8 of 13

work-product protection, or other privilege that might exist with respect to such document or
other documents or communication, written or oral, including without limitation, other
communications referred to in the documents or information produced. Upon learning of an
inadvertent disclosure, the disclosing Party or non-party may timely notify in writing the
receiving Party that said production was inadvertent and demand the return of the assertedly
privileged material. On such timely demand, the receiving Party shall retrieve and return all
copies of such information, documents and/or things to the disclosing Party or non-party within
five business days of receipt of such notice and shall not further disclose or use the information
contained in such items for any purpose until order of the Court.
14.

An inadvertent failure to designate Material as Confidential Information

does not waive the designating Party or non-party's right to secure protection for such Material.
If Material is appropriately designated as Confidential Information after the Material was
initially produced, the receiving Party, upon being timely notified of the designation, must treat
the Material in accordance with this Stipulation and Order, including retrieving all copies and
excerpts of any re-designated Material from persons not entitled to receive it.
15.

A Party who seeks to file with the Court any Confidential Information

and/or any pleading, brief, or memorandum which reproduces, paraphrases, or discloses such
information, shall follow the procedures set forth in FRCP 5.2, Individual Practice Rule 3 of
Judge Louis L. Stanton, and the associated CM/ECF Administrative Procedures Guide for
sealing documents.
16.

In the event production of documents and/or testimony is sought by

subpoena from a non-party, the Party issuing the subpoena shall notify the non-party of this
Stipulation and Order. The disclosing non-party may also designate material and testimony as

8

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 9 of 13

"Confidential" or "Highly Confidential - Attorney's Eyes Only" under this Stipulation and
Order. The Party issuing the subpoena shall forward a copy of all documents produced in
response to the subpoena to opposing counsel. If opposing counsel determines that such
documents include "Confidential" or "Highly Confidential -Attorney's Eyes Only" Material by
using the same criteria as set forth in paragraphs 1 and 2 above, opposing counsel may designate
such documents accordingly, within 20 days after receipt. All documents and materials
produced in response to subpoenas directed to non-parties shall be deemed "Confidential" until
that 20-day period has expired notwithstanding whether the non-party has made such a
designation. After that 20-day period has expired, only those documents or materials that have
been designated as "Confidential" or "Highly Confidential - Attorney's Eyes Only" according to
the above-listed procedures shall be deemed Confidential Information in accordance with this
Stipulation and Order.

17.

If any Confidential Information is the subject of, or responsive to, a

subpoena, court order, or rule requiring its disclosure, the Party seeking to comply with the
subpoena, court order, or rule will provide immediate notice to the producing Party or non-party
through its counsel. The Party seeking to comply with the subpoena, court order, or rule shall
not object to the producing Party or non-party's appearance to protect its interest in maintaining
the information as "Confidential" or "Highly Confidential - Attorney's Eyes Only." The Party
seeking to comply with the subpoena, court order, or rule will not respond to any such subpoena,
court order, or rule until the producing Party or non-party has had a reasonable opportunity to
seek appropriate relief from the Court, including, but not limited to, a motion for a protective
order.

9

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 10 of 13

18.

Witnesses at depositions taken during this action may be shown any

Confidential Information without restriction during the course of their deposition and a Party's
ability to use, exhibit, or disclose such Material at depositions taken in this action shall not be
limited. Such use will not be deemed a waiver of the provisions of this Stipulation and Order.
The Party using Confidential Information during a deposition shall notify the court reporter of
this Stipulation and Order. Whenever Confidential Information is to be discussed or disclosed in
a deposition, counsel for any Party may require the exclusion from the room of any person who
is not entitled to receive the Confidential Information under this Stipulation and Order, except
the witness, his or her counsel, the court reporter, and, if applicable, the videographer.
19.

Nothing herein shall be construed as a waiver of the right of any Party to

object to the admissibility of any evidence where such objection is based on a ground or grounds
other than that the evidence involves Confidential Information, and nothing herein shall be
construed as an agreement that any Confidential Information shall be withheld from or excluded
from evidence in this action.
20.

Nothing in this Stipulation and Order shall be deemed an

acknowledgement by any Party that discovery of Confidential Information is reasonably likely to
lead to the discovery of admissible evidence in this action, or an acknowledgment that particular
discovery requests are not burdensome or overbroad or otherwise objectionable.
21.

Upon the conclusion of this litigation, including any and all appeals or

further proceedings, all Confidential Information supplied by any Party or non-party, and all
copies thereof, shall be returned to the producing Party or non-party or their counsel, or such
Confidential Information shall be certified in writing to have been deleted or destroyed, or shall

10

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 11 of 13

otherwise be disposed of as ordered by the Court. Counsel may retain one set of all documents
related to this litigation for their records.
22.

The use of "Confidential" or "Highly Confidential - Attorney's Eyes

Only" information for the purpose of any hearing or trial that is open to the public is not
addressed at this time, but will be the subject of future agreements or orders as the need may
anse.

11

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 12 of 13

Dated: June 1, 2021

HODGSON RUSS LLP
Attorneys for Plaintiff Wilmington Trust, NA .

By s Melissa N. Subieck
Daniel C. Oliverio, Esq.
Robert J. Fluskey, Jr., Esq.
Melissa N. Subjeck, Esq.
The Guaranty Building
140 Pearl Street, Suite 100
Buffalo, New York 14202
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]

ROBINSON BROG LEINWALD GREENE
GENOVESE & GLUCK, P.C.
Attorneys for Defendant Stout Risius Ross, Inc.

Dated: June 1, 2021

By s/Lawrence S. Hirsh
Lawrence S. Hirsh, Esq.
Andrew T. Lolli, Esq.
875 Third Ave.
New York, New York 10022
Telephone: [phone]
[e-mail]
[e-mail]

SO ORDERED:

Hon. Louis L. Stanton

,(J/-z-1

12

Case 1:20-cv-02505-LLS Document 42 Filed 06/01/21 Page 13 of 13

EXHIBIT A
AGREEMENT TO BE BOUND BY CONFIDENTIALITY STIPULATION AND ORDER
The undersigned hereby acknowledges that he/she received a copy of the attached
Confidentiality Stipulation and Order in this action, captioned Wilmington Trust, NA . v. Stout

Risius Ross, Inc., (Civil No. 1:20-cv-02505), pending in the U.S . District Court for the Southern
District of New York, has read same, and agrees to: (1) be bound by all of the provisions
thereof; and (2) submit to the jurisdiction and venue of the U.S. District Court for the Southern
District of New York for all matters relating to his/her compliance with the obligations under the
Confidentiality Stipulation and Order.

Dated: - - -- - - - --

Name

Signature

002000. 11 293 Litigation I 5863329v3

13