Brittain et al v. Trustees Of Columbia University in the City of New York

Filing 96

STIPULATION REGARDING CONFIDENTIAL INFORMATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 7/29/2022) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ERIC S. BRITTAIN, KAELA MEI-CHEE
CHAMBERS, JULIAN CALLAGHAN, JOANNA
CHRISTINA CORTEZ, ANTHONY SERTEL
DEAN, ANTONIO RATTES DE FARIAS,
CAITLIN FERRELL, KATHRYN MILLER,
GRACE A. PHILIPS, BRADLEY M. PITTS, AVA
RAVICH, ANA I. DOW SILVA, JACLYN E.
TODD, DONOVAN TOLLEDO, and RICARDO J.
VARONA, on behalf of themselves and all others
similarly situated,

7/29/2022

No. 1:20-cv-09194 (PKC) (RWL)

Plaintiffs,
v.
THE TRUSTEES OF COLUMBIA UNIVERSITY
IN THE CITY OF NEW YORK,
Defendant.
STIPULATION REGARDING CONFIDENTIAL INFORMATION AND PROTECTIVE
ORDER
WHEREAS, certain documents and information have been and may be sought,
produced or exhibited by and between the parties to this proceeding (“Proceeding”), which relate
to sensitive or non-public information which a party may believe to be confidential, including but
not limited to, private personal information concerning current or former students of Columbia
University (“University”);
WHEREAS, this Proceeding may involve the production of documents containing
material regulated by the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and
associated regulations, 34 CFR Part 99 (together “FERPA”), and/or other privacy laws and
regulations;

WHEREAS, it has been agreed by and among the parties to the Proceeding,
through their respective counsel, that a Stipulated Protective Order (“Protective Order”) preserving
the confidentiality of certain documents and information should be entered by the United States
District Court for the Southern District of New York; and
WHEREAS, the Court has reviewed the terms and conditions of this Protective
Order submitted by the parties;
IT IS HEREBY ORDERED as follows:
Discovery Materials May Be Designated as Confidential or Attorneys’ Eyes Only
1.

This Protective Order shall govern all documents, the information contained

therein, and all other information produced or disclosed during the Proceeding, whether revealed
in a document, deposition, other testimony, discovery response, or otherwise (“Discovery
Material”), by any party in this Proceeding (the “Supplying Party”) to any other party (the
“Receiving Party”), when the same is designated in accordance with the procedures set forth herein
(“Designated Material”). This Protective Order is binding upon the parties to the Proceeding,
including their respective subsidiaries and affiliates and their respective attorneys, agents,
representatives, officers, employees, and others as set forth in this Protective Order.
2.

Subpoenaed third parties who so elect may avail themselves of this Protective Order

if they agree to be bound by its terms and conditions by signing a Non-Disclosure Agreement, in
the form annexed hereto, acknowledging that they have read this Protective Order and shall abide
by its terms.
3.

For purposes of this Protective Order, “Confidential Information” means

information and documents designated by a party as confidential. “Confidential Information” may

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include but is not limited to (a) any party’s non-public policies and procedures, (b) any party’s
non-public financial information, and (c) any education records protected by FERPA.
4.

For purposes of this Protective Order, “Attorneys’ Eyes Only Information” means

information and documents designated by a party as for review by the Receiving Party’s counsel
and not by the Receiving Party. “Attorneys’ Eyes Only Information” may include but is not
limited to non-public documents of a sensitive nature.
5.

Counsel for any party may designate any document or information, in whole or in

part, as Confidential Information or Attorneys’ Eyes Only Information if counsel determines, in
good faith, that such designation is necessary to protect sensitive non-public information from
disclosure.
6.

Where the portion of Discovery Material containing Confidential Information or

Attorneys’ Eyes Only Information is reasonably separable from the non-confidential portion, only
the portion constituting Confidential Information or Attorneys’ Eyes Only Information shall be so
designated. Any party that intends to use only non-confidential portions of a document containing
Confidential Information or Attorneys’ Eyes Only Information as part of a motion or at a
deposition or trial, may request that the Supplying Party provide a redacted version of that
document.
7.

A Supplying Party may designate Discovery Material or any portion thereof as

Confidential Information or Attorneys’ Eyes Only Information by stamping or otherwise clearly
marking as “Confidential” or “Attorneys Eyes Only,” respectively, the first page of the protected
document and each subsequent page thereof containing Confidential Information or Attorneys’
Eyes Only Information in a manner that will not interfere with legibility or audibility. When
documents and other data are produced in electronic form, the data storage medium should also be

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marked as containing Confidential or Attorneys’ Eyes Only Information. Deposition testimony
may be designated as Confidential Information or Attorneys’ Eyes Only Information either on the
record during the deposition or in writing within a reasonable time of receipt of the transcript. If
so designated, the cover of the final transcript of the designated testimony and any electronic file
should be marked “Confidential” or “Attorneys’ Eyes Only,” and that transcript shall be bound in
a separate volume, the cover of which bears the notation “Confidential Information Governed by
Confidentiality Order” or “Attorneys’ Eyes Only Information Governed by Confidentiality
Order.”
8.

Any Supplying Party may redesignate (or withdraw a designation regarding) any

material that it has produced (“Redesignated Material”) by (i) providing written notice to counsel
of record for each party identifying the Discovery Material whose designation is to be changed
and (ii) promptly after providing such notice, providing re-labeled copies of the Discovery
Material reflecting the new designation to the Receiving Party. Upon receipt of any such written
redesignation, counsel shall: (i) not make any further disclosure or communication of such
Redesignated Material except as provided for in this Protective Order; (ii) take reasonable steps to
notify any persons known to have possession of any Redesignated Material of the treatment of
such material required under this Protective Order pursuant to the redesignation; (iii) promptly
endeavor to procure all copies of such Redesignated Material from any persons known to have
possession of any such Redesignated Material who are not entitled to receipt of Confidential
Information or Attorneys’ Eyes Only Information; and (iv) replace the Redesignated Material with
the re-labeled copies of the material and make reasonable efforts to destroy the copies of the
Redesignated Material. Redesignation shall be effective only as of the date of such redesignation.

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Confidential Student Records
9.

Pursuant to 20 U.S.C. § 1232g(b)(2)(B) and 34 C.F.R. § 99.31(a)(9), in response to

discovery requests or as otherwise necessary for use in this Proceeding, the University and its
representatives are permitted to disclose education records (“Confidential Student Records”) as
defined in FERPA, as follows:
The University may produce a current or former student’s Confidential
Student Records with all of the student’s personal identifying information redacted
provided that the University has made a reasonable determination that the current or former
student’s identity is not personally identifiable, whether on the face of the redacted
Confidential Student Records or in conjunction with other documents produced by the
University, and taking into account other reasonably available information.
Notwithstanding anything set forth above, pursuant to 34 C.F.R.
§ 99.31(a)(9), this Order constitutes notice with respect to the Named Plaintiffs, and the
University may disclose any of the Named Plaintiffs’ Confidential Student Records in this
Proceeding without giving the Named Plaintiffs further notice or redacting Named
Plaintiffs’ personally identifying information. 1
Persons Who May Receive Confidential or Attorneys’ Eyes Only Information
10.

Confidential Information shall be disclosed by the Receiving Party only to the

following persons:
(a)

The attorneys, paralegals, and stenographic and clerical employees in the
respective law firms or legal departments of the Receiving Party’s inside or
outside counsel; and the personnel supplied by any independent contractor

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Disclosure of Confidential Student Records in accordance with this Paragraph 9 shall satisfy 20 U.S.C.
§ 1232g(b)(2)(B).

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(including litigation support service personnel) with whom such attorneys
work in connection with the Proceeding;

11.

(b)

The parties and officers and employees of the Receiving Party as counsel
for that party deems necessary for the sole purpose of assisting in this
Proceeding;

(c)

Any outside consultant or expert who is assisting counsel or a party to the
Proceeding to whom it is necessary to disclose Confidential Information for
the purpose of assisting in or consulting with respect to the preparation of
this Proceeding, and the assistants, clerical employees, or staff of such
consultant or expert;

(d)

The Court and any members of its staff to whom it is necessary to disclose
Confidential Information for the purpose of assisting the Court in this
Proceeding;

(e)

Stenographic employees and court reporters recording or transcribing
testimony in the Proceeding;

(f)

Witnesses and their counsel to whom disclosure is reasonably necessary
during their testimony in this Proceeding; provided, however, that a person
identified solely in this paragraph shall not be permitted to retain copies of
such Confidential Information;

(g)

Any mediator or arbitrator engaged by the parties to the Proceeding; and

(h)

Any person who authored or previously received the Confidential
Information through means other than the discovery process in this
Proceeding.

Attorneys’ Eyes Only Information shall be disclosed by the Supplying Party only

to the Receiving Party’s counsel. The Receiving Party’s counsel shall disclose Attorneys’ Eyes
Only Information only to the following persons:
(a)

The attorneys, paralegals, and stenographic and clerical employees in the
respective law firms or legal departments of the Receiving Party’s inside or
outside counsel; and the personnel supplied by any independent contractor
(including litigation support service personnel) with whom such attorneys
work in connection with the Proceeding;

(b)

Any outside consultant or expert who is assisting counsel or a party to the
Proceeding to whom it is necessary to disclose Attorneys’ Eyes Only
Information for the purpose of assisting in or consulting with respect to the
preparation of this Proceeding, and the assistants, clerical employees, or
staff of such consultant or expert;
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12.

(c)

The Court and any members of its staff to whom it is necessary to disclose
Attorneys’ Eyes Only Information for the purpose of assisting the Court
with respect to the Proceeding;

(d)

Stenographic employees and court reporters recording or transcribing
testimony relating to the Proceeding;

(e)

Witnesses, other than the parties, and their counsel to whom disclosure is
reasonably necessary during their testimony in this Proceeding; provided,
however, that a person identified solely in this paragraph shall not be
permitted to retain copies of such Attorneys’ Eyes Only Information;

(f)

Any mediator or arbitrator engaged by the parties to the Proceeding; and

(g)

Any person who authored or previously received the Attorneys’ Eyes Only
Information through means other than the discovery process in this
Proceeding.

Persons having knowledge of Confidential Information or Attorneys’ Eyes Only

Information only by virtue of their participation in the conduct of the Proceeding shall use that
Confidential Information or Attorneys’ Eyes Only Information only in connection with the
Proceeding or appeal thereof, and shall neither use such Confidential Information or Attorneys’
Eyes Only Information for any other purpose nor disclose such Confidential Information or
Attorneys’ Eyes Only Information to any person who is not listed in Paragraph 10 or 11,
respectively, of this Protective Order.
13.

Counsel shall take all reasonable and necessary steps to ensure the security of any

Confidential Information or Attorneys’ Eyes Only Information and will limit access to that
information to those persons listed in Paragraph 10 or 11, respectively, of this Protective Order.
14.

All persons to whom Confidential Information is to be disclosed pursuant to

Subparagraphs 10(c) and (e) – (g), as well as the Named Plaintiffs, and all persons to whom
Attorneys’ Eyes Only Information is to be disclosed pursuant to Subparagraphs 11(b), (d) – (f),
shall, prior to disclosure, be advised of the contents of this Stipulation and Protective Order and
be required to execute a Non-Disclosure Agreement evidencing their agreement to the terms of the
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Protective Order, in the form annexed hereto. Counsel shall retain each signed Non-Disclosure
Agreement, hold it in escrow, and produce it to opposing counsel, upon request, either prior to
such person being permitted to testify (at deposition or trial) or at the conclusion of the case,
whichever comes first.
15.

If Confidential Information or Attorneys’ Eyes Only Information is disclosed to

any person other than in the manner authorized by this Protective Order, the party responsible for
the disclosure shall, immediately upon learning of such disclosure, inform the Supplying Party of
all pertinent facts relating to such disclosure and make all reasonable efforts to recover all copies
of the Designated Material and prevent further disclosure or dissemination by each unauthorized
person who received such Confidential Information or Attorneys’ Eyes Only Information.
16.

Nothing shall prevent disclosure beyond the terms of this Protective Order if the

Supplying Party (or its counsel) designating the material as Confidential Information or Attorneys’
Eyes Only Information consents in writing to such disclosure, or if the Court, after reasonable
written notice to all affected parties, orders such disclosure. Any party may request at any time
permission to disclose Confidential Information or Attorneys’ Eyes Only Information to a person
other than those permitted under Paragraph 10 or 11, respectively, or to use such information in a
manner prohibited by this Protective Order, by serving a written request upon the Supplying
Party’s counsel. The Supplying Party shall respond within fourteen (14) calendar days of its
receipt of such request. Should the Supplying Party not grant such request, the parties shall follow
the procedures set forth in Local Civil Rule 37.2, as modified by Section II.D. of the Individual
Practices in Civil Cases of Robert W. Lehrburger, United States Magistrate Judge, to resolve any
dispute.

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17.

Nothing herein shall restrict a qualified recipient from making working copies,

abstracts, digests, or analyses of Confidential Information or Attorneys’ Eyes Only Information
for use in connection with this action, and such working copies, abstracts, digests, and analyses of
Confidential Information or Attorneys’ Eyes Only Information shall be deemed to have the same
level of protection as such Confidential Information or Attorneys’ Eyes Only Information has
under this Protective Order.
18.

In the event any person having possession, custody, or control of any Designated

Material produced in this action receives a subpoena or other process or order to produce such
Designated Material, such subpoenaed person or entity shall promptly notify the attorneys of
record of the Supplying Party and furnish those attorneys with a copy of said subpoena or other
process or order. The person or party receiving the subpoena or other process or order shall not
produce the requested Designated Material unless and until a court of competent jurisdiction so
directs, except if the Supplying Party (a) consents, or (b) fails to file a motion to quash or fails to
notify the person or party in writing of its intention to contest the production of the Designated
Material prior to the date designated for production of the subpoenaed information, in which event
the person or party may produce on the designated production date, but no earlier. The person or
party receiving the subpoena or other process or order shall be entitled to comply with it except to
the extent the party asserting the confidential treatment is successful in obtaining an order
modifying or quashing it. Nothing in this Order shall be construed to require the party to whom
the subpoena or other process or order is directed to give written notice where prohibited by law.
Objecting to Designation of Material
19.

Any person who objects to any designation of Confidential Information or

Attorneys’ Eyes Only Information or lack thereof may at any time prior to trial serve upon the

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Supplying Party and all other parties a written notice stating the grounds of the objection. The
Supplying Party and objecting person shall meet and confer within seven (7) calendar days of such
notice. In the absence of an agreement otherwise, the Designated Material will lose its designation
or the material will remain undesignated fourteen (14) calendar days after the written notice of
objection, unless any party seeks affirmative relief from the Court, in which case the information
will be considered designated until the Court resolves the dispute.

The party seeking the

designation shall bear the burden of demonstrating the propriety of the designation.
Inadvertent Disclosure of Protected Information
20.

Pursuant to Rule 502 of the Federal Rules of Evidence, if, in connection with this

action, and despite having taken reasonable steps to prevent the disclosure of information that it
claims is subject to a claim of attorney-client privilege, attorney work product protection, commoninterest privilege, or any other privilege or immunity, a Supplying Party inadvertently discloses
information subject to such a claim of privilege, protection, or immunity (“Inadvertently Disclosed
Information”), such disclosure, in itself, shall not constitute or be deemed a waiver or forfeiture of
any claim of privilege, protection, or other immunity with respect to the Inadvertently Disclosed
Information and its subject matter.
21.

If a Supplying Party makes a claim of inadvertent disclosure, all Receiving Parties

shall, within seven (7) calendar 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.
22.

Within seven (7) calendar days of the certification that such Inadvertently Disclosed

Information has been returned or destroyed, the Supplying Party shall produce a privilege log with
respect to the Inadvertently Disclosed Information.

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23.

If a Receiving Party thereafter moves the Court for an order compelling production

of the Inadvertently Disclosed Information, that motion shall be filed under seal in accordance
with the Appendix of the Individual Practices in Civil Cases of Robert W. Lehrburger, and shall
not assert as a ground for entering such an order the mere fact of the inadvertent production. The
Supplying 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 in camera review of the Inadvertently Disclosed Information.
Filing Confidential Information or Attorneys’ Eyes Only Information
24.

If a party seeks to file Confidential Information or Attorneys’ Eyes Only

Information with the Court, or any pleadings, motions or other papers that reveal any information
that has been designated as Confidential Information or Attorneys’ Eyes Only Information by any
party or non-party, the party shall follow the procedures outlined in the Appendix of the Individual
Practices in Civil Cases of Robert W. Lehrburger, United States Magistrate Judge.
Rights to Assert Other Objections
25.

This Order shall not prejudice the rights of any party or non-party to this action to:

(a) oppose production of any information on the ground of the attorney-client privilege, the
attorney work product doctrine, non-responsiveness, or any privilege or immunity recognized by
this Court or the courts of the State of New York, nor shall it be deemed a waiver of any objection
to such production; (b) object to the production of documents or information it considers to be
outside the scope of discovery; or (c) object to the authenticity or admissibility into evidence of
any document, testimony, or other evidence subject to this Order.

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Severability and Retention of Jurisdiction
26.

Upon the conclusion of the Proceeding, including any appeals related thereto, at the

written request and option of the Supplying Party, all Designated Material and any and all copies
shall be returned or destroyed within sixty (60) calendar days of receipt of the request from the
Supplying Party; provided, however, that attorney work product, briefs, and other court papers
prepared for use in this Proceeding need not be returned or destroyed, but may be retained only by
the parties’ counsel and, if so retained, shall continue to be maintained as Confidential or
Attorneys’ Eyes Only in accordance with the provisions of this Order.
27.

The invalidity or unenforceability of any provision of this Order shall not affect the

validity or enforceability of any other provision of this Order, which shall remain in full force and
effect.
28.

The terms of this Protective Order may be amended or modified by written

agreement of the parties or upon motion and order of the Court. This Court shall retain jurisdiction
over all persons subject to this Order for so long as such persons are in possession, custody, or
control of Designated Material and to the extent necessary to enforce any obligations arising
hereunder or to impose sanctions for any contempt thereof.

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Dated: New York, New York
July 28, 2022

By:

/s/

By:

Martin E. Karlinsky

Martin E. Karlinsky
Bonnie H. Walker
KARLINSKY LLC
103 Mountain Road
Cornwall-on-Hudson, NY 12520
Office: 646.437.1430
Mobile: [phone]
[e-mail]
[e-mail]

/s/

*DEULHOOH E. 7HQ]HU

Roberta A. Kaplan
Gabrielle E. Tenzer
Kyla P.S. Magun
KAPLAN HECKER & FINK LLP
350 Fifth Avenue, 63rd Floor
New York, NY 10118
[phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Plaintiffs

Attorneys for Defendant The
Trustees of Columbia University in
the City of New York

7/29/2022

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ERIC S. BRITTAIN, KAELA MEI-CHEE
CHAMBERS, JULIAN CALLAGHAN, JOANNA
CHRISTINA CORTEZ, ANTHONY SERTEL
DEAN, ANTONIO RATTES DE FARIAS,
CAITLIN FERRELL, KATHRYN MILLER,
GRACE A. PHILIPS, BRADLEY M. PITTS, AVA
RAVICH, ANA I. DOW SILVA, JACLYN E.
TODD, DONOVAN TOLLEDO, and RICARDO J.
VARONA, on behalf of themselves and all others
similarly situated,

No. 1:20-cv-09194 (PKC)

Plaintiffs,
v.
THE TRUSTEES OF COLUMBIA UNIVERSITY
IN THE CITY OF NEW YORK,
Defendant.
Non-Disclosure Agreement
I, _______________, acknowledge that I have read and understand the Protective Order in this
action governing the non-disclosure of Confidential Information and Attorneys’ Eyes Only
Information. I agree that (1) I will hold in confidence all Confidential Information and Attorneys’
Eyes Only Information to the extent required by the Protective Order and agree to be bound by the
terms of that Order; (2) I will use such Confidential Information and Attorneys’ Eyes Only
Information only for purposes of this litigation and for no other purpose whatsoever; and (3) I will
take all due precautions to prevent the unauthorized or inadvertent disclosure of such Confidential
Information and Attorneys’ Eyes Only Information.
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.
Dated:
_______________________________
[Signature]
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