Fairstein v. Netflix, Inc. et al

Filing 105

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material. And as set forth herein. SO ORDERED. (Signed by Judge P. Kevin Castel on 11/22/2021) (ama)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
LINDA FAIRSTEIN,
Plaintiff,
v.
NETFLIX, INC., AVA DUVERNAY, and
ATTICA LOCKE,
Defendants.

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Case No. 20-cv-8042 (PKC)
Judge P. Kevin Castel

STIPULATED PROTECTIVE ORDER
Plaintiff Linda Fairstein (“Plaintiff”) and Defendants Netflix, Inc., Ava DuVernay and
Attica Locke (collectively “Defendants”), by and through their respective counsel of record in the
above-captioned matter, hereby stipulate to the entry of this Stipulated Protective Order (“Order”)
pursuant to Federal Rule of Civil Procedure 26(c)(1):
1.

PURPOSES AND LIMITATIONS
The Parties acknowledge and agree that all documents and information produced and

received in this action shall be used solely for purposes of the above-captioned litigation. The
Parties acknowledge that disclosure and discovery activity in this litigation is likely to include
production of confidential, proprietary, or private information for which special protection from
public disclosure during discovery and from use for any purpose other than prosecuting this
litigation may be warranted. Thus, this Order is warranted and required to prevent and/or limit
disclosure of such information and/or documents that have been and may be exchanged and/or
produced in this case during discovery. The Parties further acknowledge that this Order does not
confer blanket protections on all disclosures or responses to discovery and that the protection it

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affords extends only to the limited information or items that are entitled to confidential treatment
under the applicable legal principles during the discovery process.
2.

DEFINITIONS
Except as otherwise expressly defined in this Order, the following definitions shall apply:
2.1

Party. Any party to this action, including that party’s counsel, employees,

agents, consultants, and retained experts.
2.2

Non-Party. Any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
2.3

Discovery Material. All items or information regardless of the medium or

manner generated, stored or maintained (including, among other things, statements, testimony,
transcripts, or tangible things) that are produced or generated in disclosures, responses to
discovery (including responses to third-party subpoenas) or other requests for documentation in
this matter.
2.4

“CONFIDENTIAL Information”. “Confidential Information” shall mean any

non-public information, produced during the Discovery Process, deserving protection under
Federal Rule of Civil Procedure 26(c) because the Producing Party in good faith reasonably
believes that the documents or information so designated constitute: (a) non-public information
that reveals trade secrets or that is proprietary or commercially sensitive business or financial
information; (b) private or medical information concerning any individual; (c) personal income
tax returns (including attached schedules and forms), W-2 forms and 1099 forms; and (d)
information prohibited from disclosure by statute. “Confidential Information” does not include
any information that is in the public domain at the time of disclosure to a Receiving Party or
becomes part of the public domain after its disclosure to a Receiving Party as a result of publication

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not involving a violation of this Order, including becoming part of the public record through trial
or otherwise.
2.5

Receiving Party. A Party or Non-Party that receives Discovery Material from a

Producing Party.
2.6

Producing Party. A Party or Non-Party that produces Discovery Material in this

2.7

Designating Party. A Party or Non-Party that designates information or items that

case.

it produces in disclosures or in responses to discovery or otherwise as “CONFIDENTIAL”
Information.
2.8

Protected Material. Any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL” Information.
2.9

Expert or Consultant. A person with specialized knowledge or experience in a

matter pertinent to the litigation who has been retained by a Party or her/its counsel to serve as an
expert witness or as a consultant in this action.
3.

SCOPE
The protections conferred by this Order cover not only Protected Material (as defined

above), but also any information copied or extracted therefrom, as well as all copies, excerpts,
summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or
counsel to or in this litigation or in other settings that might reveal Protected Material. The
protections conferred by this Order apply with equal force to those responding to third-party
discovery. To the extent that any party wishes to maintain the Confidentiality of any documents
or information that it intends to utilize, or present, at trial, said party shall make a motion to the
Court fourteen (14) days prior to the Final Pretrial Submission Date . The Parties shall meet and

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confer on this issue twenty-one (21) days prior to the Final Pretrial Submission Date. To the extent
the Parties can reach an agreement on this issue they will submit a joint motion to the Court.
Nothing in the Order shall be construed as requiring disclosure of documents, information,
or any other materials that are privileged in nature, or subject to the attorney-client privilege or the
attorney work-product doctrine, any other applicable privilege, and/or documents, information or
other materials that are, or may be claimed to be, otherwise beyond the scope of permissible
discovery.
Nothing in this Order shall restrict or prevent any Party from disclosing or otherwise using
its own documents and information.
4.

DURATION
This Order shall apply from the time it is entered, and shall survive the termination of this

litigation. Even after final disposition of this litigation, the confidentiality obligations imposed by
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time pursuant to
applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

Party or Non-Party that designates information or items for protection under this Order must take
care to limit any such designation to specific material that qualifies under the appropriate
standards. A Designating Party must take care to designate for protection only those parts of

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material, documents, items, or oral or written communications that qualify so that other portions
of the material, documents, items or communications for which protection is not warranted are not
placed unjustifiably within the scope of this Order.
5.2

Manner and Timing of Designations. The designation of Protected Material shall

be performed in the following manner:
(a)

For information in written form (apart from transcripts of depositions or

other pretrial or trial proceedings), the Producing Party shall affix the legend
“CONFIDENTIAL” at the top or bottom of each page that contains Protected Material.
(b)

For testimony given in deposition or in other pre-trial proceedings,

testimony transcripts, testimony exhibits, and video recordings shall be treated as
CONFIDENTIAL for thirty (30) days after receipt of the final transcript to allow time for
designation of Protected Material. The Designating Party shall designate and specify any
portions of the testimony that qualify as “CONFIDENTIAL” in writing to all parties. Only
those portions of the testimony that are appropriately designated for protection within the
30 days shall be covered by the provisions of this Order.
Transcripts containing Protected Material shall have an obvious legend on the title
page that the transcript contains Protected Material. The Designating Party shall inform the
court reporter of these requirements.
(c)

For information produced in some form other than in writing, and for any

other tangible items, the Producing Party shall affix in a prominent place on the exterior of
the container or containers in which the information or item is stored the legend
“CONFIDENTIAL”. If only portions of the information or items warrant protection, the
Producing Party, to the extent practicable, shall identify the protected portions.

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5.3

Inadvertent Failure to Designate or Disclosure. Pursuant to Fed. R. Evid.

502(d), an inadvertent failure to designate qualified information or items as “CONFIDENTIAL”
does not waive the Designating Party’s right to secure protection under this Order for such
material. If material is designated as “CONFIDENTIAL” after the material was initially produced,
the Receiving Party, on timely notification of the designation, must make reasonable efforts to
assure that the material is treated in accordance with the provisions of this Order. Additionally, the
parties recognize the possibility of inadvertent production of materials to which a Party or NonParty may make a claim of privilege or of protection from discovery as trial preparation material.
The inadvertent production of such material shall not operate as a waiver of that privilege or
protection and shall not operate as any subject matter waiver of that privilege or protection. The
Receiving Party, on timely notification of the inadvertent production, shall make reasonable efforts
to assure that the material is destroyed or returned to the Producing Party.
6.

CHALLENGING OTHER PARTY’S DESIGNATION
6.1

Timing of Challenges. Any Party may challenge a designation of confidentiality

at any time through the conclusion of expert discovery. Unless a prompt challenge to a Designating
Party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party or
Non-Party does not waive its right to challenge a confidentiality designation by electing not to
mount a challenge promptly after the original designation is disclosed.
6.2

Meet and Confer. If a Party contends that any material is not entitled to

“CONFIDENTIAL” treatment, such Party shall give written notice to the Party or Non-Party who
designated the material as “CONFIDENTIAL”. The parties shall first try to resolve such dispute

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in good faith on an informal basis within fourteen (14) days of service of the written notice
described above.
6.3

Judicial Intervention. If the dispute cannot be resolved within fourteen (14) days

of the written notice described above, the Party or Non-Party who challenges the designation of
“CONFIDENTIAL” shall have twenty-eight (28) days from the Producing Party’s receipt of such
written notice to move the Court for an order removing the “CONFIDENTIAL” designation from
the material. Each such motion should include a declaration affirming that the movant has
complied with the meet and confer requirements imposed in the preceding paragraph. Failure by
the Challenging Party to make such a motion within 28 days shall automatically waive its right at
a later time to challenge the confidentiality designation for each challenged designation. The
material shall continue to be treated as “CONFIDENTIAL” until that motion is decided by the
Court.
6.4

Burden. In all cases in which judicial intervention is sought for an order removing

the “CONFIDENTIAL” designation from any material so designated, the Designating Party shall
have the burden of persuasion to demonstrate that the material designated as “CONFIDENTIAL”
is deserving of that designation under this Protective Order, the Federal Rules of Civil Procedure,
or other applicable law. The designation of particular material as “CONFIDENTIAL” does not
create any presumption that the material so designated is in fact deserving of such protection, nor
does it limit the Challenging Party’s ability to argue that any confidentiality protections have been
forfeited by waiver or for any other reason.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may only use Protected Material that is

disclosed or produced by a Party or Non-Party in connection with this case for prosecuting or

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defending this litigation. Such Protected Material may be disclosed only to the Court and to the
categories of persons described in this Order. When the litigation has been concluded, a Receiving
Party shall comply with the provisions of Section 11 below. Counsel for a Receiving Party which
provides Protected Material to a permitted person specified below shall maintain a copy of the
signed Exhibit A (“Acknowledgment and Agreement to Be Bound”).
7.2

Persons to Whom “CONFIDENTIAL” Information May Be Disclosed. Unless

otherwise ordered by the Court or permitted in writing by the Designating Party, Protected Material
designated as “CONFIDENTIAL” by a Designating Party may be disclosed only to the following
persons:
(a)

“Outside Counsel,” which shall specifically be defined as attorneys,

paralegals, and their staff who are employed by or members of the law firms currently
retained by the parties to this action and all independent persons, companies or agencies
that are directly engaged by Outside Counsel to perform litigation support services under
the supervision of such counsel whose duties and responsibilities require access to the
CONFIDENTIAL Information or Items.
(b)

“In-House Counsel,” which shall be defined as attorneys who are

employees of a Party and all independent companies or agencies that are directly engaged
by inside counsel to perform litigation support services, paralegal assistants, stenographic,
clerical or other staff working under the supervision of such counsel and managers and
others charged with making strategic decisions, including regarding settlement, whose
duties and responsibilities require access to the “CONFIDENTIAL” Information or Items,
and only after execution of Exhibit A hereto by that person;

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(c)

The Receiving Party (where the party is a natural person), or officers,

directors, employees and agents of the Receiving Party to whom disclosure is reasonably
necessary for this litigation (where the party is a business entity);
(d)

Experts (as defined above) who have been retained to assist in preparation

of this action for trial, and only after execution of Exhibit A hereto by that person;
(e)

Any person whose testimony is taken by deposition or affidavit in this

litigation, and their respective attorneys, provided that such person and their attorneys may
only be shown copies of “CONFIDENTIAL” Information or Items during or in connection
with his or her testimony, and may not retain any “CONFIDENTIAL” Information or
Items. Counsel for a party or nonparty witness shall have the right to exclude from a
deposition any person who is not authorized to receive “CONFIDENTIAL” Information
pursuant to this Order, but such right of exclusion shall be applicable only during periods
of examination or testimony during which “CONFIDENTIAL” Information is being used
or discussed;
(f)

The author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;
(g)

Any other person by written agreement of the Designating Party and only

after execution of Exhibit A hereto by that person;
(h)

The Court and its personnel;

(i)

Court reporters, recorders, stenographers or videographers employed in

connection with this Litigation;
(j)

Contractors/Service Vendors. Those persons specifically engaged for the

limited purpose of making copies of documents, organizing or processing documents, or

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providing litigation support or information technology services, including outside vendors
hired to process electronically stored documents.
7.3

Duty to Maintain “Protected Material” Securely. Protected Material must be

stored and maintained by a Receiving Party in a secure manner that ensures that access is limited
to the persons authorized under this Order. Nothing in this Order shall be deemed to restrict in any
way any Producing Party with respect to the use of its own Protected Material.
7.4

Presentation of Protected Material To Court. Before seeking to file any

Protected Material under seal with the Court, the filing Party shall consult with the Designating
Party to determine whether, with the consent of the Designating Party, the document or a redacted
version of the document may be filed on the public docket rather than under seal. Prior to filing
any document on the public docket, the filing party shall redact personal contact information
contained within the document including a person’s home address, phone number and email
address. The parties need not redact this information for all documents produced during discovery.
Pursuant to the Court’s individual practices, notwithstanding any other provision, no
document may be filed with the Clerk under seal without a further Order of this Court addressing
the specific documents or portions of documents to be sealed. Any application to seal shall be
accompanied by an affidavit or affidavits and a memorandum of law, demonstrating that the
standards for sealing have been met and specifically addressing the applicability of Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 119-120 (2d Cir. 2006) and any other controlling
authority. Unless otherwise ordered, a Party seeking to file a Designating Party’s Protected
Material shall so advise the Designating Party fourteen (14) days in advance specifying the precise
portion of the Protected Material the Party seeks to use, the general purpose thereof and any
redactions to which the Party does not object. Within seven (7) days thereafter, the Designating

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Party may make an application to seal in accordance with this Order, indicating the portion or
portions of the information it seeks to have sealed. Nothing herein is intended to alter or modify
the applicability of Fed. R. Civ. P. 5.2 to this case. The redactions expressly authorized by Rule
5.2 may be made without further application to the Court.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in other litigation that

would compel disclosure of any information or items designated in this action as
“CONFIDENTIAL” by a Designating Party, the Receiving Party must so notify the Designating
Party in writing within a reasonable time period and in no event more than five (5) business days
after receiving the subpoena or order. Such notification must include a copy of the subpoena or
court order. The Receiving Party also must promptly inform in writing the party who caused the
subpoena or order to issue in the other litigation that some or all the material covered by the
subpoena or order is subject to this Order. In addition, the Receiving Party must deliver a copy of
this Order promptly to the party in the other action that caused the subpoena or order to issue.
The purpose of imposing these duties is to alert the interested parties to the existence of
this Order and to afford the Designating Party in this case an opportunity to protect its
confidentiality interests in the court from which the subpoena or order issued. This Order shall not
be construed as requiring the Receiving Party to seek relief from the subpoena or to challenge or
appeal any order of a court of competent jurisdiction requiring production of the information at
issue.
This provision shall in no way be construed as in any way limiting a Party’s disclosure of
its own “CONFIDENTIAL” information in response to a subpoena or order in another litigation.

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9.

NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION
The terms of this Order are applicable to information produced by a Non-Party in this

action and designated as “CONFIDENTIAL”. Such information produced by Non-Parties in
connection with this litigation is protected by the remedies and relief provided by this Order.
Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
additional protections.
10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Order, the Receiving Party
must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b)
use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons
to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such
person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached
hereto as Exhibit A. The Designating Party reserves all rights against the Receiving Party for its
violations. In the event any Party or Non-Party violates or threatens to violate any term of this
Order, any Party may seek immediate injunctive relief against any such Party or Non-Party
violating or threatening to violate any term of this Order.
11.

FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party, within thirty (45)

calendar days after the final disposition of this action, as defined in Section 4, each Receiving Party
must return all Protected Material to the Producing Party or certify in writing that all Protected
Material has been destroyed. As used in this subdivision, all Protected Material includes all copies,
abstracts, compilations, summaries or any other form of reproducing or capturing any of the

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Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party
must submit a written certification under penalty of perjury to the Producing Party (and, if not the
same person or entity, to the Designating Party) by the 30-day deadline that affirms that the
Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of
reproducing or capturing any of the Protected Material. Notwithstanding this provision, counsel are
entitled to retain one archival copy of all pleadings, exhibits used in the litigation, motion papers,
transcripts, legal memoranda, correspondence or attorney work-product, even if such materials
contain Protected Material, Any such archival copies that contain or constitute Protected Material
remain subject to this Order as set forth in Section 4.
12.

MISCELLANEOUS
12.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the Court in the future. Each Party expressly acknowledges that such
modifications may be necessary. Further, each Party expressly acknowledges that written
modifications to this Order approved by the parties may be necessary as the case goes forward.
12.2

Use for Litigation Purposes Only. Each Party or person bound by this Order,

including all those who have executed Exhibit A, agrees that all documents and information
produced or received in discovery shall be used solely for purposes of the above-captioned
litigation, and shall not be used for any other purpose without prior consent of the Producing Party.
This limitation shall not apply to any material that is in the public domain at the time of disclosure
to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party
as a result of publication not involving a violation of this Order, including becoming part of the
public record through trial or otherwise.

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12.3

Enforcement. Each Party or person bound by this Order, including all those who

have executed Exhibit A, agrees that the United States District Court for the Southern District of
New York has jurisdiction to enforce the terms of this Order, and that such jurisdiction continues
beyond the date this matter is concluded. The United States District Court for the Southern District
of New York shall retain jurisdiction over all parties and persons who have received Protected
Material for the purpose of enforcing the provisions of the Order after the action is otherwise
terminated, making such rulings and entering such orders as may be necessary to compel
compliance and impose sanctions as the Court shall determine. Should a dispute materialize
concerning whether a person was improperly provided Protected Material, the Party in possession
of Exhibit A for that person shall provide it to the complaining party upon five (5) business days
written notice.
12.4

Right to Assert Other Objections. By stipulating to the entry of this Order, no

Party waives any right it otherwise would have to object to disclosing or producing any information
or item on any ground not addressed in this Order. The parties specifically agree that they shall
not use this Order to support a waiver argument in any discovery motion, or to argue that any Party
waived its objections to produce any particular documents or information.
This Order does not limit or waive the right of any Party to object to the admissibility at
trial of any proffered evidence, documentary or otherwise.
This Order does not constitute a finding or evidence that any of the information disclosed
or contained in any produced or designated materials is or is not “CONFIDENTIAL.”
12.5

Effective Without Court Order. The parties agree to be bound by this Order

pending the entry of this Order, or an alternative thereto which is satisfactory to the parties, by the

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Court, and any violation of this Order’s terms shall be subject to the same sanctions and penalties
as if this Order had been entered by the Court.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD
By: /s/ Andrew T. Miltenberg

By : Natalie J. Spears

Andrew T. Miltenberg (AM7006)
Kara L. Gorycki (KG3519)
NESENOFF & MILTENBERG, LLP
363 Seventh Avenue, 5th Floor
New York, New York 10001
Phone: [phone]
[e-mail]
[e-mail]

Natalie J. Spears (pro hac vice)
Jacqueline A. Giannini (pro hac vice)
DENTONS US LLP
233 South Wacker Drive, Suite 5900
Chicago, Illinois 60606
Phone: [phone]
[e-mail]
[e-mail]

Attorneys for Plaintiff Linda Fairstein

Sandra Hauser
1221 Avenue of the Americas
New York, New York 10020
Phone: [phone]
[e-mail]
Attorneys for Defendants Netflix, Inc., Ava
DuVernay and Attica Locke

PURSUANT TO STIPULATION, IT IS SO ORDERED.

11/22/2021
Hon. P. Kevin Castel
United States District Judge

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
LINDA FAIRSTEIN,
Plaintiff,
v.
NETFLIX, INC., AVA DUVERNAY, and
ATTICA LOCKE,
Defendants.

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)
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Case No. 20-cv-8042 (PKC)
Judge P. Kevin Castel

ACKNOWLEDGMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
___________, 2021, in the above-captioned action and attached hereto, and understands the terms
thereof, and agrees to be bound. The undersign submits to the jurisdiction of the United States
District Court for the Southern District of New York in matters relating to the Protective Order
and understands the terms of the Protective Order obligate him/her to use materials designated as
“CONFIDENTIAL” in accordance with the Order solely for purposes of the above-captioned
action, and not disclose any such Protected Material to any other person or firm.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:

______________________________________

Job Title:

______________________________________

Employer:

______________________________________

Business Address:

______________________________________

Date: __________

_____________________________________
Signature