Ng v. Veronis Systems, Inc et al

Filing 18

CONFIDENTIALITY STIPULATION AND ORDER:...regarding procedures to be followed that shall govern the handling of confidential material... So Ordered. (Signed by Judge Alvin K. Hellerstein on 4/28/2021) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CINDY NG,
:
Plaintiff,
v.

:

1:20-cv-04315-AKH

:
:

VARONIS SYSTEMS, INC., SARAH
HOSPELHORN, and ROB SOBERS,

:

Defendants.
:
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CONFIDENTIALITY STIPULATION AND ORDER
The undersigned counsel for Plaintiff Cindy Ng (“Plaintiff”) and
Defendant Varonis Systems, Inc. (“Defendant”) stipulate and agree that discovery in
the above-entitled action (“Action”) may involve the production of information that
the Parties may consider to be sensitive, confidential, personal, proprietary, and/or
protected by law, including but not limited to the Health Insurance Portability and
Accountability Act of 1996 and updated through HIPAA Omnibus Rule of 2013
(“HIPAA”), as well as under statutory or other legal privileges. The term “Action”
includes all applicable appeals. Accordingly, the Parties and their undersigned counsel
agree as follows:
1.

“Confidential Information” shall mean and refer to all documents,

responses to document or information requests, information on magnetic media,
computer tapes, computer disks, hard copies or printouts derived from computer
tapes or computer disks, or individual portions thereof, or other information which a

Party designates “CONFIDENTIAL” at the time of its disclosure, in the manner set
forth in this stipulation, and which that Party alleges includes bona fide personal,
medical, proprietary or otherwise sensitive information, including but not limited to
trade secrets, confidential research, non-public financial information, “non-public
personal information” or “confidential health information” (as defined in HIPAA
and/or any other applicable state or federal law or regulation concerning confidential
health information), medical records and/or private personal information. The Parties
may further designate certain “confidential” materials or testimony of a highly
confidential nature as “ATTORNEYS’ EYES ONLY” (“Attorneys’ Eyes Only Material”).
Attorneys’ Eyes Only Material refers to confidential materials that has a likelihood of
causing competitive harm to the producing Party if disclosed to persons other than
those identified in paragraph 6. This Stipulation Regarding Confidential Information
(“Stipulation”) will not apply to documents or other materials that the Parties have
obtained through sources other than the Providing Party (as defined herein).
2.

In the event that any Party inadvertently discloses or produces any

document that is privileged, non-responsive, or otherwise exempt from disclosure or
production, it shall not constitute a waiver of any and all privileges applicable to that
or any other document. Any party who realizes that an inadvertent disclosure has
occurred must immediately notify, in writing, all other Parties of the inadvertent
disclosure. Once such notification is given, the Party receiving notice must take
steps to ensure inadvertently produced or disclosed documents are not disclosed to
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any person or used for any reason without prior approval and consent of the Court.
Any Party seeking the approval and consent of the Court for disclosure or use of
such documents shall follow the procedures set forth in paragraph 10.
3.

Documents deemed confidential shall be so designated by clearly

marking “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” on each page thereof.
4.

The inadvertent failure to designate material as “CONFIDENTIAL” or

“ATTORNEYS’ EYES ONLY” shall not be deemed a waiver of any claim of
confidentiality as to such matter, and the same thereafter may be corrected by
supplemental written notice. It shall not be deemed a violation of the Stipulation to
have disclosed information not designated as “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” that is subsequently so designated if disclosure was made prior to such
designation. Any failure of the Parties to designate a document or information as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” shall not be deemed a waiver of
any claim of confidentiality that the Parties would otherwise be entitled to invoke
against a non-party to this Action.
5.

Confidential Information, copies thereof, information contained therein

and any notes, abstracts, summaries, analyses or reports pertaining thereto may be
inspected by or revealed to only the following “Qualified Persons”:
a.

Parties to this Action and any officer, director, employee, trustee,
partner or in-house legal personnel for a Party who is responsible for
assisting counsel in the Action;

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b.

Outside counsel and in-house counsel for the Parties in this Action,
including regular employees who provide assistance for purposes of
discovery, litigation, preparation for trial, and/or trial of this Action as a
part of their regular job duties.

c.

Any expert retained or consulted by a Party for the purpose of obtaining
such expert’s advice or opinion regarding issues in the Action, but only
to the extent necessary for the expert to provide such advice or opinion
and provided the expert has signed an Agreement to Maintain
Confidentiality in the form attached hereto as Exhibit A.

d.

Witnesses who may testify in the Action, provided that the material
disclosed is directly related to the subject of their testimony and
provided the witness has signed an Agreement to Maintain
Confidentiality in the form attached hereto as Exhibit A.

e.

Any other person who is designated a Qualified Person by order of this
Court or further agreement of the Parties;

f.

The Court and any personnel necessary to facilitate the Action,
including, but not limited to: stenographic reporters and clerical and/or
administrative personnel; and

g.

Any other person to whom the Parties agree in writing and provided the
witness has signed an Agreement to Maintain Confidentiality in the form
attached hereto as Exhibit A.

6.

Attorneys’ Eyes Only Material may be inspected by or revealed to only

the following Qualified Persons:
a.

Outside counsel and in-house counsel for the Parties in the Action,
including regular employees of counsel who provide assistance for
purposes of discovery, litigation, preparation for trial, and/or trial of this
of this Action as a part of their regular job duties.

b.

The Court and any personnel necessary to facilitate the instant Action,
including, but not limited to: stenographic reporters and clerical and/or
administrative personnel; and

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c.

Any expert retained or consulted by a Party for the purpose of obtaining
such expert’s advice or opinion regarding issues in the Action, but only
to the extent necessary for the expert to provide such advice or opinion
and provided the expert has signed an Agreement to Maintain
Confidentiality in the form attached hereto as Exhibit A.

7.

All Confidential Information and Attorneys’ Eyes Only Material shall be

used solely for purposes of this Action.
8.

Any document production that may contain “non-public personal

information” or “confidential health information” (as defined in HIPAA and/or other
applicable state or federal law or regulation concerning confidential health
information) may be produced in encrypted form and the production media shall be
labeled “MAY CONTAIN NON-PUBLIC PERSONAL INFORMATION” or “MAY
CONTAIN CONFIDENTIAL HEALTH INFORMATION” as applicable. If a producing
party encrypts or “locks” the production, the producing party shall simultaneously
send, under separate cover, an explanation of how to decrypt the files.

The

producing party may also redact any non-relevant information protected by HIPAA
and shall label any such redaction as “CONFIDENTIAL HEALTH INFORMATION” or
“CHI”. The producing party will produce a redaction log identifying the basis for all
redactions.
9.

In the event that a Qualified Person is requested to produce Confidential

or Attorneys’ Eyes Only Material, outside of the Action, pursuant to a request for
production of documents or information, interrogatory, request for admission,
subpoena, deposition or other form of discovery, the Qualified Person will notify the
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producing party and provide the producing party with a reasonable opportunity to
object or file a motion to quash prior to disclosure of any Confidential Material. In
the event that a Qualified Person receives a request to produce any Confidential
Information or Attorneys’ Eyes Only Material, or if a Qualified Person is served with
a motion to compel production of documents or information or a subpoena (in the
event that the subpoena may not be objected to) that demands the disclosure of
such material, they will immediately notify the Party who provided the subject
information (the “Providing Party”) of the request, demand, motion, or subpoena.
The Qualified Person will allow the Providing Party thirty (30) days, or the maximum
amount of time available, to contest its disclosure. The Qualified Person will use
reasonable efforts to obtain assurances that confidential treatment will be accorded
to such information; provided, however, that all legal fees and costs and any other
expense incurred in connection with such efforts shall be paid by the Providing Party
making such a request.
10.

Information shall be designated as “CONFIDENTIAL” or “ATTORNEYS’

EYES ONLY” only upon a good-faith belief that the information falls within the scope
of information subject to protection, under the definition set forth above.
11.

A party objecting to the designation of a document, information, or

testimony as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” shall so notify the
other Party in writing setting forth with specificity the information that he or she
contends is not confidential and attempt to resolve the dispute. If this attempt is
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not successful, the objecting Party may file an application with the Court for ruling
that the document, information, or testimony not be treated as “CONFIDENTIAL.”
The burden of establishing the legitimacy of the confidential designation, shall at all
times remain on the producing party. Except as provided above, until the Court
enters an order, if any, changing the designation of the document or testimony, it
shall be given the “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” treatment initially
assigned to it and provided for in this Stipulation.
12.

All Qualified Persons shall be informed prior to disclosure of any

Confidential Information or Attorneys’ Eyes Only Material, of the nature and scope
of this Stipulation, and his or her obligations under this Stipulation.

No person

receiving Confidential Information or Attorneys’ Eyes Only Material shall disclose it
to any person other than those described in paragraphs 5 and 6 and for the purposes
specified in this Stipulation, and in no event shall such person make any other use
of such “Confidential” or “Attorneys’ Eyes Only” Material.
13.

Copies of all executed Agreements to Maintain Confidentiality shall be

maintained by counsel.
14.

Any party may seek to modify, expand, cancel or supersede this

agreement by stipulation of the Parties or by motion on notice and the Court shall
give no weight to the terms of this Stipulation in considering the proposed
amendment or other relief. Nothing herein shall:

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a.

operate as an admission by any Party that any particular discovery
material contains or reflects trade secrets, nonpublic proprietary or
commercial information or other confidential matters;

b.

prejudice in any way the rights of any Party to object to the production
of documents it considers not subject to discovery;

c.

prejudice in any way the rights of a Party to seek a Court determination:
i)

whether particular discovery materials shall be produced; or

ii)

if produced, whether such material should be subject to the terms
of this Stipulation;

d.

prejudice in any way the rights of a Party to apply to the Court for a
further protective order relating to any Confidential Information or
Attorneys’ Eyes Only Material;

e.

prejudice in any way the right of a Party to seek relief from a provision
of this Stipulation; or

f.

operate as a waiver of the Parties rights under New York law.

15.

All documents, transcripts, magnetic media, or portions thereof, as well

as any copies, designated “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” pursuant
to this Stipulation shall be returned to the producing Party within forty-five (45) days
of the conclusion of this Action, or at the option of counsel, destroyed (and certified
by affidavit as having been destroyed). All databases and similar compilations of
information shall be destroyed and such destruction shall be certified to by counsel
for the obtaining Party and by Qualified Persons identified in paragraphs 5 and 6
above. In accordance with and for the period proscribed by professional obligations,

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Counsel is permitted to maintain a working file that contains “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” materials.
16.

This Stipulation shall be effective immediately and shall survive the

conclusion of this Action. The Court shall retain jurisdiction to enforce the terms of
this Stipulation for so long as it remains in force.
17.

This stipulation may be signed in counterparts, and PDF, electronic and

facsimile signatures shall be deemed originals herein.

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Dated: New York, New York
April 20, 2021
BALLON, STOLL, BADER AND NADLER

PADUANO & WEINTRAUB LLP

s/Marshall Bellovin
Marshall Bellovin, Esq.
Monika Olowska, Esq.
729 Seventh Avenue
17th Floor
New York, New York 10019
[phone]

/s/ Kerry A. Burns
Kerry A. Burns, Esq.
Meredith Cavallaro, Esq.
1251 Avenue of the Americas
Ninth Floor
New York, New York 10020
[phone]

Counsel for Plaintiff

Counsel for Defendant

SO ORDERED

:

____________________
Hon. Alvin K. Hellerstein

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CINDY NG,
:
Plaintiff,
v.

:

1:20-cv-04315-AKH

:
:

VARONIS SYSTEMS, INC., SARAH
HOSPELHORN, and ROB SOBERS,

:

Defendants.
:
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AGREEMENT TO MAINTAIN CONFIDENTIALITY
The undersigned hereby acknowledges and says:
I hereby attest to my understanding that information or documents
designated “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” are provided to me
pursuant to the terms and conditions and restrictions of the Confidentiality Stipulation
(“the Stipulation”) dated _____________, 2021 in the above-styled Action; that I have
been given a copy of and have read the Stipulation, and that I hereby agree to be
bound by its terms.

I also understand that my execution of this Agreement to

Maintain Confidentiality, indicating my agreement to be bound by the Stipulation, is
a prerequisite to my review of any produced materials, as defined in the Stipulation.
I further agree that I shall not disclose to others, except in accordance
with the Stipulation, such information or documents, including notes or other
memoranda or writings regarding information contained therein, and that such
information or documents shall be used only for the purposes authorized by the

Stipulation.
I further agree and attest to my understanding that my obligation to
honor the confidentiality of such information or documents will continue even after
the termination of this action.
I further agree and attest to my understanding that, in the event that I
fail to abide by the terms of the Stipulation, I may be subject to sanctions, including
contempt, for such a failure.
I further agree to be subject to the jurisdiction of the Court in any
proceeding to enforce this Stipulation.

Dated: __________________
By:
Printed Name: _______________________
Subscribed and sworn to before me
this ____ day of __________________
_________________________________
Notary Public