Klein et al v. 1stdibs.com, Inc.

Filing 20

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Mary Kay Vyskocil on 1/8/2021) (mro)

Case 1:20-cv-06766-MKV Document 20 Filed 01/08/21 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 1/8/2021

ELIZABETH KLEIN and STEPHANIE MUHS,
Plaintiffs,

Civil Action No.1:20-cv-06766
STIPULATED
CONFIDENTIALITY
AGREEMENT AND
PROTECTIVE ORDER

- v. 1STDIBS.COM, INC.,
Defendant.

MARY KAY VYSKOCIL, District Judge:
WHEREAS, all of the parties to this action (collectively, the “Parties” and each
individually, a “Party”) request that this Court issue a protective order pursuant to Federal Rule
of Civil Procedure 26(c) to protect the confidentiality of nonpublic and competitively sensitive
information that they may need to disclose in connection with discovery in this action;
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds that good cause exists for issuance of an appropriately
tailored confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that the Parties to this action, their respective officers,
agents, servants, employees, and attorneys, any other person in active concert or participation
with any of the foregoing, and all other persons with actual notice of this Order will adhere to the
following terms, upon pain of contempt:
1.

With respect to “Discovery Material” (i.e., information of any kind produced

or disclosed in the course of discovery in this action) that a person has designated as
“Confidential” pursuant to this Order, no person subject to this Order may disclose such
Confidential Discovery Material to anyone else except as expressly permitted hereunder:

Firm:52156364

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2.

The Party or person producing or disclosing Discovery Material (each,

“Producing Party”) may designate as Confidential only the portion of such material that it
reasonably and in good faith believes consists of:
(a)

1stDibs’s business records, including, but not limited to, its non-public policies
and procedures regarding its finances, compensation and benefit information,
marketing or business plans, products and pricing, trade secrets, software, or
proprietary or sensitive business information, the disclosure of which would be
detrimental to the conduct of 1stDibs’s business and which would cause harm if
publicly disclosed;

(b)

personnel records of current and former employees of 1stDibs other than
Plaintiffs;

(c)

medical information and records;

(d)

Plaintiffs’ personal financial information;

(e)

any other category of information given confidential status by this Court after the
date of this Order.

3.

With respect to the Confidential portion of any Discovery Material other than

deposition transcripts and exhibits, the Producing Party or its counsel may designate such portion
as “Confidential” by: (a) stamping or otherwise clearly marking as “Confidential” the protected
portion in a manner that will not interfere with legibility or audibility; and (b) producing for
future public use another copy of said Discovery Material with the confidential information
redacted.
4.

A Producing Party of its counsel may designate deposition exhibits or portions of

deposition transcripts as Confidential Discovery Material either by: (a) indicating on the record

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during the deposition that a question calls for Confidential information, in which case the
reporter will bind the transcript of the designated testimony in a separate volume and mark it as
“Confidential Information Governed by Protective Order,” or (b) notifying the reporter and all
counsel of record, in writing, within 30 days after a deposition has concluded, of the specific
pages and lines of the transcript that are to be designated “Confidential,” in which case all
counsel receiving the transcript will be responsible for marking the copies of the designated
transcript in their possession or under their control as directed by the Producing Party or that
person’s counsel. During the 30-day period following a deposition, all Parties will treat the entire
deposition transcript as if it had been designated Confidential.
5.

If at any time before the termination of this action a Producing Party realizes that

it should have designated as Confidential some portion(s) of Discovery Material that it
previously produced without limitation, the Producing Party may so designate such material by
notifying all Parties in writing. Thereafter, all persons subject to this Order will treat such
designated portion(s) of the Discovery Material as Confidential. In addition, the Producing Party
shall provide each other Party with replacement versions of such Discovery Material that bears
the “Confidential” designation within two business days of providing such notice.
6.

Nothing contained in this Order will be construed as: (a) a waiver by a Party or

person of its right to object to any discovery request; (b) a waiver of any privilege or protection;
or (c) a ruling regarding the admissibility at trial of any document, testimony, or other evidence.
7.

Where a Producing Party has designated Discovery Material as Confidential,

other persons subject to this Order may disclose such information only to the following persons:
(a)

the Parties to this action, their insurers, and counsel to their insurers;

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(b)

counsel retained specifically for this action, including any paralegal, clerical, or
other assistant that such outside counsel employs and assigns to this matter;

(c)

outside vendors or service providers (such as copy-service providers and
document-management consultants) that counsel hire and assign to this matter;

(d)

any mediator or arbitrator that the Parties engage in this matter or that this Court
appoints, provided such person has first executed a Non-Disclosure Agreement in
the form annexed as Exhibit A hereto;

(e)

as to any document, its author, its addressee, and any other person indicated on
the face of the document as having received a copy, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as Exhibit A hereto;

(f)

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 NonDisclosure Agreement in the form annexed as Exhibit A hereto;

(g)

any person a Party enters into discussions to retain or retains to serve as an expert
witness or otherwise provide specialized advice to counsel in connection with this
action, provided such person has first executed a Non-Disclosure Agreement in
the form annexed as Exhibit A hereto;

(h)

stenographers engaged to transcribe depositions the Parties conduct in this action;

(i)

this Court, including any appellate court, its support personnel, and court
reporters; and

(j)

any other person agreed to by the Parties.

8.

Before disclosing any Confidential Discovery Material to any person referred to

in subparagraphs 7(d), 7(f), or 7(g) above, counsel must provide a copy of this Order to such

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person, who must sign a Non-Disclosure Agreement in the form annexed as Exhibit A hereto
stating that he or she has read this Order and agrees to be bound by its terms. Said counsel must
retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to opposing
counsel either before such person is permitted to testify (at deposition or trial) or at the
conclusion of the case, whichever comes first.
9.

This Order binds the Parties and certain others to treat as Confidential any

Discovery Materials so classified. The Court has not, however, made any finding regarding the
confidentiality of any Discovery Materials, and retains full discretion to determine whether to
afford confidential treatment to any Discovery Material designated as Confidential hereunder.
The Parties shall follow Rule 9(B) of the Court’s Individual Rules of Practice in Civil Cases with
respect to pretrial requests for filing under seal.
10.

Any Party who objects to any designation of confidentiality may, at least 30 days

before the close of discovery in this action, serve upon counsel for the Producing Party a written
notice stating with particularity the grounds of the objection. If the Parties cannot reach
agreement within 10 days of service of the written notice, counsel for all affected Parties will
address their dispute to this Court in accordance with paragraph 3(D) of this Court’s Individual
Practices.
11.

Recipients of Confidential Discovery Material under this Order may use such

material solely for the prosecution and defense of this action and any appeals thereto, and not for
any other purpose or in any other litigation proceeding. Nothing contained in this Order,
however, will affect or restrict the rights of any Party with respect to its own documents or
information produced in this action.

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12.

Nothing in this Order will prevent any Party from producing any Confidential

Discovery Material in its possession in response to a lawful subpoena or other compulsory
process, or if required to produce by law or by any government agency having jurisdiction,
provided that such Party gives written notice to the Producing Party as soon as reasonably
possible, and if permitted by the time allowed under the request, at least 10 days before any
disclosure. Upon receiving such notice, the Producing Party will bear the burden to oppose
compliance with the subpoena, other compulsory process, or other legal notice if the Producing
Party deems it appropriate to do so.
13.

Nothing shall prevent a Party from withholding production of a document

considered privileged (including, but not limited to, attorney-client or attorney work product) or
otherwise restricted from production, despite the existence of this Confidentiality Agreement.
14.

Each person who has access to Discovery Material designated as Confidential

pursuant to this Order must take all due precautions to prevent the unauthorized or inadvertent
disclosure of such material.
15.

Within 60 days of the final disposition of this action—including all appeals— all

recipients of Confidential Discovery Material must either (a) return it, including all copies
thereof, to the Producing Party, or (b) destroy such material, including all copies thereof. In
either event, by the 60-day deadline, if requested by the Producing Party, the recipient must
certify its return or destruction by submitting a written certification to the Producing Party that
affirms that it has not retained any copies, abstracts, compilations, summaries, or other forms of
reproducing or capturing any of the Confidential Discovery Material. Notwithstanding this
provision, the attorneys that the Parties have specifically retained for this action may retain an
archival copy of all produced documents, and pleadings, motion papers, transcripts, expert

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reports, legal memoranda, correspondence, or attorney work product, even if such materials
contain Confidential Discovery Material. Any such archival copies that contain or constitute
Confidential Discovery Material remain subject to this Order.
16.

This Order will survive the termination of the litigation and will continue to be

binding upon all persons subject to this Order to whom Confidential Discovery Material is
produced or disclosed.
17.

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.
SO STIPULATED AND AGREED.
/s/ Lauri F. Rasnick
Dated: January 8, 2021

/s/ Scott G. Grubin
Dated: January 8, 2021

SO ORDERED.

Dated: January 8, 2021

MARY KAY VYSKOCIL

New York, New York

United States District Judge

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Exhibit A
to Stipulated Confidentiality
Agreement and Protective Order
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELIZABETH KLEIN and STEPHANIE MUHS,
Plaintiffs,

Civil Action No.1:20-cv-06766

- v. -

NON-DISCLOSURE
AGREEMENT

1STDIBS.COM, INC.,
Defendant.

I, __________ , acknowledge that I have carefully read and understand the Protective Order
in this action governing the non-disclosure of those portions of Discovery Material that have been
designated as Confidential. I agree that I will not disclose such Confidential Discovery Material to
anyone other than for purposes of this litigation and that at the conclusion of the litigation or upon
request, I will return all discovery information to the Party or attorney from whom I received it.
By acknowledging these obligations under the Protective Order, I understand that I am submitting
myself to the jurisdiction of the United States District Court for the Southern District of New York
for the purpose of any issue or dispute arising hereunder and that my willful violation of any term
of the Protective Order could subject me to punishment for contempt of Court.

Name:
Date:

Firm:52156364