Star Fabrics, Inc. v. Ross Stores, Inc. et al

Filing 40

STIPULATION AND AGREED UPON PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Victor Marrero on 4/26/2021) (mml)

Case 1:20-cv-10564-VM Document 39 Filed 04/23/21 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------X
STAR FABRICS, INC.,
Plaintiff,
v.

Case No. 1:20-cv-10564-VM

ROSS STORES, INC., et al.,
Defendants.
-------------------------------------------------------------X
[PROPOSED] STIPULATION AND AGREED UPON PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION
:
IT IS HEREBY STIPULATED AND AGREED between and among Plaintiff Star
Fabrics, Inc. (“Plaintiff”) and Defendants Ross Stores, Inc. and Gogo Apparel, Inc.
(collectively, “Defendants”), as follows:
GOOD CAUSE STATEMENT
It is the intent of the parties and the Court that information will not be designated as
confidential in this case for tactical reasons, and that nothing shall be designated without a good
faith belief that there is good cause why it should not be part of the public record.

Examples of

confidential information that the parties may seek to protect from unrestricted or unprotected
disclosure include:
(a)

Information that is the subject of a contractual non-disclosure or
confidentiality agreement or obligation, and/or Protective Order issued in
another case;

(b)

The names, or other information tending to reveal the identity of a party’s
supplier, distributor, or designer;

Case 1:20-cv-10564-VM Document 39 Filed 04/23/21 Page 2 of 18

(c)

Agreements with third-parties, including license agreements, transfer
agreements, distributor agreements, manufacturing agreements, design
agreements,

development

agreements,

supply

agreements,

sales

agreements, or service agreements;
(d)

Research and development information regarding apparel and/or fabric
designs and prints;

(e)

Proprietary engineering or technical information, including product
design, manufacturing techniques, processing information, drawings,
memoranda and reports;

(f)

Information related to budgets, sales, profits, costs, margins, licensing of
technology

or

designs,

product

pricing,

or

other

internal

financial/accounting information, including non-public information
related to financial condition or performance and income or other nonpublic tax information;
(g)

Information

related

to

internal

operations

including

personnel

information;
(h)

Information related to past, current and future product development;

(i)

Information related to past, current and future market analyses and
business and marketing development, including plans, strategies, forecasts
and competition; and

(j)

Trade secrets (as defined by the jurisdiction in which the information is
located).

Unrestricted or unprotected disclosure of such confidential technical, commercial or
personal information would, in the producing party’s opinion, result in prejudice or harm to the
producing party by revealing the producing party’s competitive confidential information, which
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has been developed at the expense of the producing party and which represents valuable tangible
and intangible assets of that party.

Additionally, legitimate privacy interests must be

safeguarded. Accordingly, the parties respectfully submit that there is good cause for the entry
of this Protective Order.
The parties agree, subject to the Court’s approval, that the following terms and conditions
shall apply to this civil action.
1.

Designated Material.

1.1

Information or material may be designated for confidential treatment pursuant

to this Protective Order by any party, person or entity producing or lodging it in this action (the
“Designating Party”), if:

(a) produced or served, formally or informally, pursuant to the

Federal Rules of Civil Procedure or in response to any other formal or informal discovery
request in this action; and/or (b) filed or lodged with the Court.

All such information and

material and all information or material derived from it constitutes “Designated Material”
under this Protective Order.
1.2

Unless and until otherwise ordered by the Court or agreed to in writing by the

parties, all Designated Materials designated under this Protective Order shall be used by the
parties and persons receiving such Designated Materials (“Receiving Party”) solely for
litigation purposes, including any appellate proceeding relating thereto.

Designated Material

shall not be used by any party or person receiving them for any business or any other nonlitigation purpose.

No party or person shall disclose Designated Material to any other party

or person not entitled to receive such Designated Material under the specific terms of this
Protective Order.

For purposes of this Protective Order, “disclose” or “disclosed” means to

show, furnish, reveal or provide, indirectly or directly, any portion of the Designated Material
or its contents, orally or in writing, including the original or any copy of the Designated
Material.
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2.

Access to Designated Materials.

2.1

Materials Designated “CONFIDENTIAL”:

Subject to the limitations set forth

in this Protective Order, Designated Material may be marked “CONFIDENTIAL” for the
purpose of preventing the disclosure of information or materials that the designating party in
good faith believes is confidential.

Before designating any specific information or material

“CONFIDENTIAL,” the Designating Party’s counsel shall make a good faith determination
that the information warrants protection under Rule 26(c) of the Federal Rules of Civil
Procedure.
(a)

Such information may include, but is not limited to:
The financial performance or results of the Designating Party, including without

limitation income statements, balance sheets, cash flow analyses, budget projections, sales
records, and present value calculations;
(b)

Corporate and strategic planning by the Designating Party, including without

limitation marketing plans, competitive intelligence reports, sales projections and competitive
strategy documents;
(c)

Names, addresses, and other information that would identify prospective

customers, or the distributors or prospective distributors of the Designating Party, however it
is expressly understood and agreed that the names of vendors and customers for the allegedly
infringing goods at issue, other than individuals, may shall not be deemed confidential, and
Plaintiff is free to amend the operative pleadings to add such customers as appropriate;
(d)

Technical data, research and development data, and any other confidential

commercial information, including but not limited to trade secrets of the Designating Party;
(e)

Information used by the Designating Party in or pertaining to its trade or

business, which information the Designating Party believes in good faith has competitive value,
which is not generally known to others and which the Designating Party would not normally
reveal to third parties except in confidence, or has undertaken with others to maintain in
confidence;
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(f)

Information which the Designating Party believes in good faith falls within the

right to privacy guaranteed by the laws of the United States or New York; and
(g)

Information which the Designating Party believes in good faith to constitute,

contain, reveal or reflect proprietary, financial, business, technical, or other confidential
information.
The fact that an item or category is listed as an example in this or other sections of this
Protective Order does not, by itself, render the item or category discoverable.
2.1.0

Materials designated “CONFIDENTIAL” may be disclosed only to the following

Designees:
2.1.1

Persons who appear on the face of Designated Materials marked

“CONFIDENTIAL” as an author, addressee, or recipient thereof.
2.1.2

Counsel retained as outside litigation attorneys of record in this action, and their

respective associates, clerks, legal assistants, stenographic, videographic and support
personnel, and other employees of such outside litigation attorneys, and organizations retained
by such attorneys to provide litigation support services in this action and the employees of said
organizations.

“Counsel” explicitly excludes any in-house counsel whether or not they are

attorneys of record in this action.
2.1.3

Consultants, including non-party experts and consultants retained or employed

by Counsel to assist in the preparation of the case, to the extent they are reasonably necessary
to render professional services in this action, and subject to the disclosure requirements of
section 2.3.

Each consultant must sign a certification that he or she has read this Stipulated

Protective Order, will abide by its provisions, and will submit to the jurisdiction of this Court
regarding the enforcement of this Order’s provisions.
2.1.4

A party’s officers and/or employees, which may include in-house counsel.

2.1.5

The Court, its clerks and secretaries, and any court reporter retained to record

proceedings before the Court.
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2.2
ONLY”:

Materials Designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
Subject to the limitations in this Protective Order, Designated Materials may be

marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” for the purpose of
preventing the disclosure of information or materials which, if disclosed to the receiving party,
might cause competitive harm to the Designating Party.

Information and material that may

be subject to this protection includes, but is not limited to, technical and/or research and
development data, intellectual property, financial, marketing and other sales data, and/or
information having strategic commercial value pertaining to the Designating Party’s trade or
business.

Nothing in paragraph 2.1 shall limit the information or material that can be

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under this
paragraph.

Before designating any specific information “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY,” the Designating Party’s counsel shall make a good faith
determination that the information warrants such protection.
2.2.0

Materials designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” materials may be disclosed only to the following Designees:
2.2.1

Persons who appear on the face of Designated Materials marked “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as an author, addressee, or recipient
thereof;
2.2.2

Counsel for the parties to this action, as defined in section 2.1.2;

2.2.3

Consultants for the parties to this action, as defined in section 2.1.3; and

2.2.4

The Court, its clerks and secretaries, and any court reporter retained to record

proceedings before the Court.
2.2.5 Court reporters retained to transcribe depositions.
2.3

Legal Effect of Designation.

The designation of any information or materials

as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” is
intended solely to facilitate the conduct of this litigation.
6

Neither such designation nor

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treatment in conformity with such designation shall be construed in any way as an admission
or agreement by the Receiving Party that the Designated Materials constitute or contain any
trade secret or confidential information.

Except as provided in this Protective Order, the

Receiving Party shall not be obligated to challenge the propriety of any designation, and a
failure to do so shall not preclude a subsequent attack on the propriety of such designation.
2.4

Nothing herein in any way restricts the ability of the Receiving Party to use

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material
produced to it in examining or cross-examining any employee or consultant of the Designating
Party.
2.5

The parties agree that the Plaintiff may be provided by its counsel a summary

document, or oral summary, setting forth the alleged infringers’ full identities, revenues, and
gross profits numbers, notwithstanding any party’s designation of documents showing such
information as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. The parties
further agree that the identities and contact information of alleged infringers is not confidential,
and Plaintiff is free to name revealed alleged infringers as defendants in a lawsuit.
3.

Certificates Concerning Designated Materials. Each Consultant as defined in

section 2.1.3, to whom any Designated Materials will be disclosed shall, prior to disclosure of
such material, execute the Acknowledgement of Stipulated Protective Order in the form
attached hereto as Exhibit A.

Counsel who makes any disclosure of Designated Materials

shall retain each executed Acknowledgement of Stipulated Protective Order and shall circulate
copies to all Counsel for the opposing party concurrently with the identification of the
Consultant to the attorneys for the Designating Party pursuant at the conclusion of the case or
upon such consultants designation as an expert witness.
4.

Use of Designated Materials by Designating Party.

Nothing in this Protective

Order shall limit a Designating Party’s use of its own information or materials, or prevent a
Designating Party from disclosing its own information or materials to any person.
7

Such

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disclosure shall not affect any designations made pursuant to the terms of this Protective Order,
so long as the disclosure is made in a manner that is reasonably calculated to maintain the
confidentiality of the information.
5.

Manner of Designating Written Materials.

5.1

Documents, discovery responses and other written materials shall be designated

as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
whether in whole or in part, as follows.
5.2

The producing party shall designate materials by placing the legend

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on each
page so designated prior to production.

If the first or cover page of a multi-page document

bears the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” the entire document shall be deemed so designated, and the absence of marking each
page shall not constitute a waiver of the terms of this Order.

If the label affixed to a computer

disk containing multiple files bears the legend “CONFIDENTIAL,” “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” the entire disk shall be deemed so protected, and the absence
of marking of each file shall not constitute a waiver of the terms of this Order.
5.3

A designation of ““CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” as to any item, thing or object that cannot otherwise be
categorized as a document, shall be made: (1) by placing the legend “CONFIDENTIAL,” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on the thing, object or container
within which it is stored; or (2) by specifically identifying, in writing, the item and the level of
confidentiality designation, where such labeling is not feasible.
5.4

When a party wishes to designate as “CONFIDENTIAL,” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” materials produced by someone other than
the Designating Party (a “Producing Party”), such designation shall be made:
5.4.1

Within fifteen (15) business days from the date that the Designating Party
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receives copies of the materials from the producing or disclosing entity; and
5.4.2

By notice to all parties to this action and to the Producing Party, if such party is

not a party to this action, identifying the materials to be designated with particularity (either by
production numbers or by providing other adequate identification of the specific material).
Such notice shall be sent by U.S. mail and either facsimile or e-mail.
5.4.3.

A party shall be permitted to designate as “CONFIDENTIAL,” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material produced by a Producing Party
only where:
a.

The material being produced was provided to or developed by such Producing Party:

(i) under a written confidentiality agreement with the Designating Party; or (ii) within a
relationship with the Designating Party (or a party operating under the control thereof) in which
confidentiality is imposed by law (including, but not limited, to the employment relationship and
the vendor-customer relationship); and
b.

The material being produced would be considered confidential material of the

Designating Party under Section 2.1 of this Agreement if it were in the possession of the
Designating Party.
5.5

Upon notice of designation, all persons receiving notice of the requested

designation of materials shall:
5.5.1

Make no further disclosure of such Designated Material or information

contained therein, except as allowed in this Protective Order;
5.5.2

Take reasonable steps to notify any persons known to have possession of or

access to such Designated Materials of the effect of such designation under this Protective
Order; and
5.5.3

If “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

EYES ONLY” material or information contained therein is disclosed to any person other than
those entitled to disclosure in the manner authorized by this Protective Order, the party
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responsible for the disclosure shall, immediately upon learning of such disclosure, inform the
Designating Party in writing of all pertinent facts relating to such disclosure, and shall make
every effort to prevent further disclosure by the unauthorized person(s).
6.

Manner of Designating Deposition Testimony.

6.1

Deposition transcripts and portions thereof taken in this action may be

designated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” during the deposition or after, in which case the portion of the transcript containing
Designated Material shall be identified in the transcript by the Court Reporter as
“CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

The

designated testimony shall be bound in a separate volume and marked by the reporter
accordingly.
6.2

Where testimony is designated during the deposition, the Designating Party shall

have the right to exclude, at those portions of the deposition, all persons not authorized by the
terms of this Protective Order to receive such Designated Material.
6.3

Within thirty (30) days after a deposition transcript is certified by the court

reporter, any party may designate pages of the transcript and/or its exhibits as Designated
Material.

During such thirty (30) day period, the transcript in its entirety shall be treated as

“CONFIDENTIAL”

(except

for

those

portions

identified

earlier

as

“HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” which shall be treated accordingly from
the date of designation).

If any party so designates such material, the parties shall provide

written notice of such designation to all parties within the thirty (30) day period.

Designated

Material within the deposition transcript or the exhibits thereto may be identified in writing by
page and line, or by underlining and marking such portions “CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and providing such marked-up portions to
all counsel.
7.

Copies.

All complete or partial copies of a document that disclose Designated
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Materials shall be subject to the terms of this Protective Order.
8.

Court Procedures.

8.1

Disclosure of Designated Material to Court Officials.

Subject to the provisions

of this section, Designated Material may be disclosed to the Court, Court officials or employees
involved in this action (including court reporters, persons operating video recording equipment
at depositions, and any special master, referee, expert, technical advisor or Third-Party
Consultant appointed by the Court), and to the jury in this action, and any interpreters
interpreting on behalf of any party or deponent.
8.2

Filing Designated Materials with the Court.

Nothing in this Order shall vary the

requirements for filing under Seal imposed by the Federal Rules of Civil Procedure or the Local
Rules of this Court.

If a party wishes to file with the Court any document, transcript or thing

containing information which has been designated “CONFIDENTIAL,” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” the Party shall designate the material as set
forth herein and file it with the Court in an application for filing under seal under the Local Rules
of this Court, with the material bearing the legend:
“[CONFIDENTIAL, or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY]
INFORMATION SUBJECT TO PROTECTIVE ORDER.”
The Application for Filing under Seal must show good cause for the under seal filing. Filing the
document under seal shall not bar any party from unrestricted use or dissemination of those
portions of the document that do not contain material designated “CONFIDENTIAL,” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
designate

information

as

“CONFIDENTIAL,”

or

If a filing party fails to

“HIGHLY

CONFIDENTIAL

–

ATTORNEYS’ EYES ONLY,” any party who in good faith believes that designation and filing
under seal is required by this Protective Order may move the Court to file said information under
seal within five (5) days of learning of the defective filing. Notice of such designation shall be
given to all parties.

Nothing in this provision relieves a party of liability for damages caused
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by failure to properly sent, file Designated Material under seal.
8.3

In the event that the Court refuses to allow any document to be filed under seal,

despite the Receiving Party’s compliance with Section 8.2, the Federal Rules of Civil Procedure
and Local Rules of this Court, the Receiving Party may, nonetheless, file such documents with
the Court as part of the public record.
8.4

Retrieval of Designated Materials. The party responsible for lodging or filing

the Designated Materials shall be responsible for retrieving such Designated Materials from
the Court following the final termination of the action (including after any appeals).
9.

Objections

9.1

A party may challenge any designation under this Protective Order at any time,

on the grounds that the information or material does not meet the standards of Sections 1 and
2, by following the procedure of Local Rule 37 of this Court.
9.2

The parties shall meet and confer in good faith prior to the filing of any motion

under this section.
10.

Client Communication.

Nothing in this Protective Order shall prevent or

otherwise restrict counsel from rendering advice to their clients and, in the course of rendering
such advice, relying upon the examination of Designated Material.

In rendering such advice

and otherwise communicating with the client, however, counsel shall not disclose any
Designated Material, except as otherwise permitted by this Protective Order.
11.

No Prejudice.

11.1

This Protective Order shall not diminish any existing obligation or right with

respect to Designated Material, nor shall it prevent a disclosure to which the Designating Party
consented in writing before the disclosure takes place.
11.2

Unless the parties stipulate otherwise, evidence of the existence or nonexistence

of a designation under this Protective Order shall not be admissible for any purpose during any
proceeding on the merits of this action.
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11.3

If any party required to produce documents contends that it inadvertently

produced any Designated Material without marking it with the appropriate legend, or
inadvertently produced any Designated Material with an incorrect legend, the producing party
may give written notice to the receiving party or parties, including appropriately stamped
substitute copies of the Designated Material.

If the parties collectively agree to replacement

of the Designated Material, then the documents will be so designated.

Within five (5)

business days of receipt of the substitute copies, the receiving party shall return the previously
unmarked or mismarked items and all copies thereof.

If the parties do not collectively agree

to replacement of the Designated Material, the producing party shall comply with the procedure
of Local Rule 37 in seeking protection for the inadvertently produced material.

The

Receiving Party shall maintain the alleged inadvertently produced material in accordance with
the requested Designation for 60 days or ruling on an Motion under Local Rule 37, whichever
is earlier.
11.4

Neither the provisions of this Protective Order, nor the filing of any material

under seal, shall prevent the use in open court, in deposition, at any hearing, or at trial of this
case of any material that is subject to this Protective Order or filed under seal pursuant to its
provisions.

At deposition, the party using Designated Material must request that the portion

of the proceeding where use is made be conducted so as to exclude persons not qualified to
receive such Designated Material.

At trial, the party using Designated Material must request

that the portion of the proceeding where use is made be conducted so as to exclude persons not
qualified to receive such Designated Material.

All confidentiality designations or legends

placed pursuant to this Stipulated Protective Order shall be removed from any document or
thing used as a trial exhibit in this case.

The removal of such confidentiality designations or

legends under the preceding sentence shall not affect the treatment of such documents and
things as Designated Material under this Stipulated Protective Order.

Upon request of a party,

the parties shall meet and confer concerning the use and protection of Designated Material in
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open court at any hearing.

Prior to the pretrial conference, the parties shall meet and confer

concerning appropriate methods for dealing with Designated Material at trial.
11.5

Any inadvertent production of documents containing privileged information

shall not be deemed to be a waiver of the attorney-client privilege, work product doctrine, or
any other applicable privilege or doctrines.

All parties specifically reserve the right to

demand the return of any privileged documents that it may produce inadvertently during
discovery if the producing party determines that such documents contain privileged
information.

After receiving notice of such inadvertent production by the producing party,

the receiving party agrees to make reasonable and good faith efforts to locate and return to the
producing party all such inadvertently produced documents.
12.

Modification and Survival.

12.1

Modification.

The Order shall be subject to modification by the Court on its own

initiative, or on Motion of a party or any other person with standing. Accordingly, the parties
reserve the right to seek modification of this Protective Order at any time for good cause.

The

parties agree to meet and confer prior to seeking to modify this Protective Order for any reason.
The restrictions imposed by this Protective Order may only be modified or terminated by
written stipulation of all parties or by order of this Court.

Parties entering into this Protective

Order will not be deemed to have waived any of their rights to seek later amendment to this
Protective Order.
12.2

Trial.

The parties understand that this Protective Order does not extend to

material presented at the trial of this Action. Once the case proceeds to trial, any information
that is presented on the record during trial, whether or not designated as confidential and/or
kept and maintained pursuant to the terms of this Protective Order, will be presumptively
available to all members of the public, including the press, unless good cause is shown to the
district judge in advance of the presentation of that material at trial to proceed otherwise.
However, any documents or things that have been designated as confidential do not lose their
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protected character simply by virtue of having been presented as an exhibit at trial.
12.3

Survival and Return of Designated Material.

This Protective Order shall

survive termination of this action prior to trial of this action.

Upon final termination of

the action prior to trial of this action, and at the written request of the Designating Party,
all Designated Material, including deposition testimony, and all copies thereof, shall be
returned to counsel for the Designating Party (at the expense of the Designating Party) or
(at the option and expense of the requesting party) shall be destroyed.

Upon request for

the return or destruction of Designated Materials, counsel shall certify their compliance
with this provision and shall serve such certification to counsel for the Designating Party
not more than ninety (90) days after the written request to return or destroy Designated
Materials.

Counsel who have submitted one or more Certificate(s) prepared pursuant to

Section 3 do not need to retain such Certificate(s) past the ninety (90) day period.
13.

No Contract.

This Protective Order shall not be construed to create a

contract between the parties or between the parties and their respective counsel.
14.

Court’s Retention of Jurisdiction. The Court retains jurisdiction after final

termination of the action prior to trial, to enforce this Stipulation.
15.

Exception for Public Information. Nothing in this Stipulation shall be deemed

in any way to restrict the use of documents or information which are lawfully obtained or publicly
available to a party independently of discovery in this action, whether or not the same material
has been obtained during the course of discovery in the action and whether or not such documents
or information have been designated hereunder. However, in the event of a dispute regarding
such independent acquisition, a party wishing to use any independently acquired documents or
information shall bear the burden of proving independent acquisition.
16.

Any material designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” by a party will be deemed by the Designating Party to this
agreement to be authentic and a business record of the Designating Party, and the Designating
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Party will be precluded from challenging the authenticity of any document so designated at any
time during this litigation, including during any necessary collection or appeal proceedings. To
the extent that such material is not a business record of the Designating Party and was not created
by the Designating Party, the non-producing party for which the material is a business record
shall have opportunity to challenge the authenticity of the material so designated.
17.

No Prior Judicial Determination.

This Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any document or
material designated Confidential Information or Attorneys’ Eyes Only Information by counsel
or the parties is entitled to protection under Rule 26(c) of the Federal Rules of Civil Procedure
or otherwise until such time as the Court may rule on a specific document or issue.
18.

No Admission.

The designation by a producing Party of Confidential

Information or Attorneys Eyes Only Information is intended solely to facilitate the preparation
and trial of this action. Such designation is not an admission by any Party that the designated
disclosure constitutes or contains any Confidential Information or Attorneys Eyes Only
Information. Disclosure of Confidential Information or Attorneys Eyes Only Information is not
a waiver of any right of the producing Party to object to admissibility.
19.

Miscellaneous.

(a)

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. Similarly, no Party waives any right to object
on any ground to the use in evidence of any of the material covered by this Order. Moreover,
this Order shall not preclude or limit any Party’s right to seek further and additional protection
against or limitation upon production of documents produced in response to discovery.
(b)

Other Privileges.

Nothing in this Order shall require disclosure of materials that

a Party contends are protected from disclosure by the attorney-client privilege or the attorney
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work-product doctrine. This provision shall not, however, be construed to preclude any Party
from moving the Court for an order directing the disclosure of such materials where it disputes
the claim of attorney-client privilege or attorney work-product doctrine.
(c)

Self-Disclosure.

Nothing in this Order shall affect the right of the Designating

Party to disclose the Designating Party’s own Confidential information or items to any person or
entity.

Such disclosure shall not waive any of the protections of this Order.
(d)

Captions. The captions of paragraphs contained in this Order are for reference

only and are not to be construed in any way as a part of this Order.

DONIGER / BURROUGHS

KAKAR, P.C.

By: /s/
Scott Alan Burroughs
[e-mail]
Laura M. Zaharia
[e-mail]
231 Norman Ave. Suite 413
Brooklyn, NY 11222
Tel:
[phone]

By:

/s/
Sumeer Kakar
[e-mail]
Kalpana Nagampalli
[e-mail]
525 Seventh Avenue, Suite 1810
New York, NY 10018
Tel:
[phone]

Attorneys for Plaintiff Star Fabrics, Inc.
Attorneys for Defendants Ross Stores, Inc. and
Gogo Apparel, Inc.

IT IS SO ORDERED.
Dated:

_______________

_____________________________________
Honorable Judge Victor Marrero

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Case 1:20-cv-10564-VM Document 39 Filed 04/23/21 Page 18 of 18

EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------X
STAR FABRICS, INC.,
ACKNOWLEDGEMENT OF
STIPULATED PROTECTIVE
ORDER
Plaintiff,
Case No. 1:20-cv-10564-VM
v.
[Discovery Matter]
ROSS STORES, INC., et al.,

Defendants.
-------------------------------------------------------------X
The undersigned hereby acknowledges that he/she has read the STIPULATED
PROTECTIVE ORDER entered in the above captioned litigation, and that he/she fully understands
and agrees to abide by the obligations and conditions thereof.

Dated:

_____________________

______________________________
(Signature)
______________________________
(Print Name)

18