Beckles-Canton v. Lutheran Social Services of New York, Inc.

Filing 34

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...This agreement does not bind the Court or any of its personnel.The Court can modify this stipulation at any time. The Court w illretain jurisdiction over the terms and conditions of thisagreement only for the pendency of this litigation. Any partywishing to make redacted or sealed submissions shall comply withRule 6(A) of this Court's Individual Rules of Civil Procedure. (Signed by Judge Katherine Polk Failla on 9/20/2021) (rro)

Case 1:20-cv-04379-KPF Document 34 Filed 09/20/21 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
SANAYI BECKLES-CANTON,
:
,
:
:
Plaintiff,
:
:
- against :
:
LUTHERAN SOCIAL SERVICES OF NEW
:
YORK, INC.,
:
Defendant. :
:
:
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MEMO ENDORSED
20-cv-04379-KPF

STIPULATED
PROTECTIVE ORDER

The parties to this action having requested that the Court issue a protective order to
protect the confidentiality of personal and proprietary information that may need to be
disclosed to adversary parties in connection with discovery in this case pursuant to the
Federal Rules of Civil Procedure, and to guard against the waiver of attorney-client
privilege and work product protection pursuant to Fed. R. Evid. 502(d), the parties having
agreed to the following terms, and the Court having found that good cause exists for
issuance of an appropriately tailored protective order governing the pre-trial phase of this
action,
It is hereby ordered by the Court that any material (which includes all items or
information, regardless of the medium or manner in which it is generated, stored, or
maintained, that are produced or generated in disclosures or responses to discovery or
requests in this matter) supplied during the course of this litigation (“Discovery Material”)
that the disclosing party or entity reasonably and in good faith believes to constitute or
include confidential personal information, medical records, personnel records, or such other

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sensitive commercial information that is not publicly available (hereinafter, the “Protected
Material”)—including Protected Material supplied to the Court and/or the parties to this
litigation by any disclosing party or entity prior to the entry of this Protective Order—may
be designated “Confidential” at the disclosing party’s or entity’s election. To the extent
practicable, counsel for disclosing parties or entities are directed to mark such documents
as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” in a manner that will not
interfere with the legibility of the document and that will permit complete removal of the
“CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” designation.
1.

The Order is subject to the Local Rules of this District and the Federal Rules of Civil

Procedure on matters of procedure and calculation of time periods.
2.

The protections conferred by this Protective Order cover not only the Protected

Materials designated “ Confidential,” but also (a) any information copied or extracted from the
Protected Material; ( b) copies, excerpts, summaries, or compilations of Protected Material;
all
and (c) any testimony, or presentations regarding the Protected Material by any party.
3.

The designation “Confidential” does not mean that the document has any status or

protection by statute or otherwise except to the extent and for purposes of this Order.
4.

Unless ordered by the Court, or otherwise provided for herein, all Discovery

Material, including but not limited to the Protected Material disclosed, will be held and used
by the person receiving such information solely for use in connection with the action in which
this Order issued. The documents shall not be disclosed to the media, posted on the internet or
otherwise made public not in connection with this action, or used for any business, commercial, or
other purpose not connected to the litigation of the action in which this Order is issued.

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5.

Nothing in this Protective Order operates to create an admission by any party that

Protected Material disclosed in this case is relevant or admissible. Each party specifically
reserves the right to object to the use or admissibility of all Protected Material disclosed, in
accordance with applicable law and Court rules.
6.

The designation “Confidential” shall not be applied to, and the restrictions and

obligations set forth in this Order shall not apply to, any information or document that: (i) is
already public knowledge or otherwise in the public domain; (ii) has become public
knowledge or enters the public domain other than as a result of disclosure by a receiving
party, its employees or agents in violation of this Order, (iii) has come or shall come into a
receiving party’s legitimate possession independently of the party or person seeking to
designate information or documents as confidential in this action, or (iv) has come into a
receiving party’s legitimate possession prior to entry of this Order.
7.

The restrictions set out in this Order shall not apply to copies of documents or

information contained in documents that any party obtained or obtains independently of
documents designated as “Confidential.”
8.

With respect to the Confidential portion of any Protected Material other

than deposition transcripts and exhibits, the producing person or that person’s counsel may
designate such portion as “Confidential” by stamping or otherwise clearly marking as
“Confidential” the protected portion in a manner that will not interfere with legibility or
audibility, and by also producing for future public use another copy of said Protected
Material with the confidential information redacted. With respect to deposition
transcripts and exhibits, a producing person or that person’s counsel may indicate on the
record that a question calls for Confidential Information, in which case those portions of
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the transcript of the designated testimony shall be marked “CONFIDENTIAL
INFORMATION GOVERNED BY PROTECTIVE ORDER” by the reporter.
9.

If at any time prior to the trial of this action, a producing person realizes that

some portion[s] of Protected Material that that person previously produced without limitation
should be designated as Confidential, he may so designate such material by so apprising all
parties in writing, and such designated portion[s] of the Protected Material will thereafter be
treated as Confidential under the terms of this Order.
10.

No person subject to this Order other than the producing person shall disclose any

of the Protected Material designated by the producing person as Confidential to any other person
whomsoever, except to:
a.

the parties to this action and employees of the parties who have

responsibility for the preparation and trial of the action;
b.

counsel for the parties and employees and agents of counsel who

have responsibility for the preparation and trial of the action;
c.

as to any document, its author, its addressee, and any other

person indicated on the face of the document as having received a copy;
d.

any witness who counsel for a party in good faith believes may

be called to testify at trial or deposition in this action; provided such person has first
executed a Non-Disclosure Agreement in the form annexed as Attachment A
hereto;
e.

any person retained by a party to serve as an expert witness,

consultant, or investigator (including support personnel working with such
individuals, if any) employed by the parties or counsel for the parties to assist in the

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preparation and trial of this action or otherwise to provide specialized advice to counsel
in connection with this action, provided such person has first executed a NonDisclosure Agreement in the form annexed as Attachment A hereto;
f.

other persons only by written consent of the producing party or

upon order of the Court and on such conditions as may be agreed or ordered, provided
such persons have first executed a Non-Disclosure Agreement in the form annexed as
Attachment A hereto;
g.

court reporters and stenographers engaged to transcribe

depositions conducted in this action; and
h.
11.

this Court.

Prior to any disclosure of any Protected Material to any person referred to in

subparagraphs 10(d) or 10(e) above, such person shall be provided by counsel with a copy of
this Protective Order and shall sign a Non-Disclosure Agreement in the form annexed hereto
stating that that person has read this Order and agrees to be bound by its terms. Said counsel
shall retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to
opposing counsel either prior to such person being permitted to testify (at deposition or trial) or
at the conclusion of the case, whichever comes first. Counsel shall make reasonable efforts to
seek the return or destruction of materials provided to prospective witnesses.
12.

Notwithstanding the designation of material as “Confidential”, there is no

presumption that such Protected Material will be filed with the Court under seal. To the extent
necessary, the Parties agree to follow Judge Failla’s Individual Practices to request that any
document be filed under seal.

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13.

Any party or producing person who either objects to any designation of

confidentiality, or who, by contrast, requests still further limits on disclosure, may at any time
prior to the trial of this action serve upon counsel for the designating person or party requesting
production a written notice stating with particularity the grounds of the objection or request, or
make production under a designation that limits disclosure and/or transmission of produced
documents. If agreement cannot be reached promptly, counsel for all affected persons will send
a letter to the Court. Nothing in this Order or any action or agreement of a party under this
Order limits the Court’s power to issue any orders that may be appropriate with respect to the
use and disclosure of any documents produced or used in discovery or at trial.
14.

The provisions of this Order shall not be construed as preventing the use or

disclosure of any information in any motion, hearing or trial held in this action, or any appeal
therefrom. In the event that any material previously designated as Confidential becomes public
in a legal proceeding, that Protected Material will no longer be afforded confidential treatment
under this Order.
15.

If a party intends to present at trial Protected Material that has been designated as

Confidential or information derived therefrom, the documents may be presented in open court at
trial unless the party or producing person received an order from the Court preventing such use.
16.

Each person who has access to Protected Material that has been designated as

Confidential shall take all due precautions to prevent the unauthorized or inadvertent disclosure
of such material. In the event of an inadvertent disclosure of Protected Material, the disclosing
party and/or their counsel shall use reasonable efforts to secure the return or destruction of the
inadvertently produced Protected Material.

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17.

If, in connection with this litigation, a party inadvertently discloses information

subject to a claim of attorney-client privilege or attorney work product protection
(“Inadvertently Disclosed Information”), such disclosure shall not constitute or be deemed a
waiver or forfeiture of any claim of privilege or work product protection with respect to the
Inadvertently Disclosed Information and its subject matter.
18.

If a disclosing party makes a claim of inadvertent disclosure, the receiving party

shall, within five business days, return or destroy all copies of the Inadvertently Disclosed
Information and provide a certification of counsel that all such information has been returned or
destroyed.
19.

Within five business days of the notification that such Inadvertently Disclosed

Information has been returned or destroyed, the disclosing party shall produce a privilege log
with respect to the Inadvertently Disclosed Information.
20.

The receiving party may move the Court for an Order compelling

production of the Inadvertently Disclosed Information. The motion shall be filed under
seal. The receiving party shall not otherwise use or refer to the Inadvertently Disclosed
Information in court filings, depositions, at trial or otherwise unless and until the Court
rules that the Inadvertently Disclosed Information is not privileged or otherwise
protected.
21.

Should a disclosing party make a claim of inadvertent disclosure during a

deposition, and the receiving party has a good faith objection to the applicability of any
privilege or protection, the receiving party may assert such objection on the record and
exhaust its questions of the witness regarding such Inadvertently Disclosed Information,
provided that the receiving party shall not assert such questioning as a ground for waiver

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of any protection and that the portion of the deposition transcript containing such
questioning shall not be used or referred to by the receiving party in court filings,
subsequent depositions, at trial or otherwise unless and until the Court rules that the
Inadvertently Disclosed Information is not privileged or protected. If the Court rules that
the Inadvertently Disclosed Information is privileged or otherwise protected, the portion of
the deposition transcript containing questioning regarding the Inadvertently Disclosed
Information shall be stricken from the record.
22.

The disclosing party retains the burden of establishing the privileged or protected

nature of any Inadvertently Disclosed Information. Nothing in this Order shall limit the right of
any party to request an in camera review of the Inadvertently Disclosed Information.
23.

Unless otherwise agreed or ordered, this Protective Order shall survive the

termination of the litigation. Within 30 days of the final disposition of this action, including
appeals, if any, all Protected Material designated as “Confidential,” and all copies thereof, shall
be promptly returned to the producing person unless: (1) the document has been offered into
evidence or filed without restriction as to disclosure; (2) the parties agree to destruction in lieu of
return; or (3) as to documents bearing the notation, summations, or other mental impressions of the
receiving party, that party elects to destroy the documents and certifies to the producing person that
it has done so. After dismissal or entry of final judgment not subject to further appeal, the
Clerk may elect to return to the producing person or, after notice, destroy documents filed or
offered at trial under seal or otherwise restricted by the Court as to disclosure.
24.

Notwithstanding the above requirements to return or destroy documents, counsel

may retain attorney work product, including an index which refers or relates to information
designated Confidential, so long as that work product does not duplicate verbatim sequential

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1

portions of the text or images of Confidential documents. This work product shall continue to be
Confidential under this Order. An attorney may use his or her work product in a subsequent
litigation provided that its use does not disclose or use Confidential documents.
25.

This Court shall 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.
26.

Applications to amend or modify this Protective Order may be made by the

parties or any other person with standing concerning the subject matter as may be warranted.
27.

The Court retains discretion whether to afford confidential treatment to any

confidential document or information contained in any confidential document submitted to the
Court in connection with any motion, application, or proceeding that may result in an order
and/or decision by the Court.

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Case 1:20-cv-04379-KPF Document 34 Filed 09/20/21 Page 10 of 11

AGREED TO BY:

Dated September 17, 2021

/s/ Andrew C. Weiss
Andrew C. Weiss
Borrelli & Associates, PLLC
910 Franklin Avenue, Suite 200
Garden City, NY 11530

/s/ Thomas P. Halpern

Thomas P. Halpern
Henninger S. Bullock
MAYER BROWN LLP
1221 Avenue of the Americas
New York, New York 10020
[phone]
[e-mail]
[e-mail]

Counsel for Plaintiff Sanayi BecklesCanton

Counsel for Defendant Lutheran
Social Services of New York, Inc.

September 20, 2021
________________________
DATE:

SO ORDERED.

__________________________________
HON. KATHERINE POLK FAILLA, U.S.D.J.
UNITED STATES DISTRICT JUDGE

This agreement does not bind the Court or any of its personnel.
The Court can modify this stipulation at any time. The Court 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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Case 1:20-cv-04379-KPF Document 34 Filed 09/20/21 Page 11 of 11

ATTACHMENT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SANAYI BECKLES-CANTON,
:
,
:
:
:
Plaintiff,
:
:
- against :
:
LUTHERAN SOCIAL SERVICES OF NEW
:
YORK, INC.,
:
Defendant. :
:
:
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20-cv-04379-KPF

NON-DISCLOSURE AGREEMENT
1. I have reviewed the Protective Order to which this Attachment A is annexed.
2. By my signature below, I agree to the terms of the Protective Order.

By __________________________________
(Print Name)

_____________________________________
(Signature)

_____________________________________
(Date)

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