ABC v. DEF

Filing 102

PROTECTIVE ORDER:...regarding procedures to be followed that shall govern the handling of confidential material. And as set forth herein. This Order shall take effect when entered and shall be binding upon the Parties, their Counsel, and persons made subject to this Order, including those who execute Exhibit A. SO ORDERED. (Signed by Judge P. Kevin Castel on 1/18/2023) (ama)

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page11ofof14
14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
– – – – – – – – – – – – – – – – – – – – x
In re Ex Parte Application of

:

SYLVIA BENEDEK KLEIN and ELIANE
BENEDEK SEGAL,

:
:

20 Misc. 203 (PKC)
ECF Case

XXXXXXXXX
[PROPOSED] PROTECTIVE
ORDER

Applicants.
:
– – – – – – – – – – – – – – – – – – – – x
WHEREAS, this Court’s Opinion and Order of May 18, 2022, granted in part and
denied in part an application by applicants Sylvia Benedek Klein (“Sylvia”) and Eliane
Benedek Segal (“Eliane”) for international discovery assistance under 28 U.S.C. § 1782,
and directed the submission of proposed subpoenas; and,
WHEREAS, this Court’s Opinion and Order of October 26, 2022, sustained in part
and overruled in part objections, interposed by intervenors Gertrudes Benedek Alexandre
R. Benedek, Vivian Noemy Benedek Moas and Evelyn Benedek (together the “Gertrudes
Group”), to Sylvia and Eliane’s proposed subpoenas and authorized the service of
subpoenas (the “Subpoenas”) on five financial institutions (each, an “Institution”) for the
production of financial records (the “Produced Records”) concerning members of the
Gertrudes Group, members of the families of the Gertrudes Group, and companies Sylvia
and Eliane allege to be associated with the Gertrudes Group; and,
WHEREAS, it is expected that some of the Produced Records may contain private
and confidential financial information of the Gertrudes Group; and,
WHEREAS, the Gertrudes Group has requested the entry of this Protective Order
to permit the Produced Records to be used as authorized by this Court’s prior Orders
without unduly compromising the financial privacy of the persons mentioned therein; and,
WHEREAS, Sylvia and Eliane consent to entry of this Protective Order,

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page22ofof14
14

NOW, THEREFORE, IT IS HEREBY ORDERED, pursuant to 28 U.S.C. § 1782
and Federal Rule of Civil Procedure 26(c), as follows:
1.

Purpose
This Protective Order is intended to protect documents, things, and information

(including all documents and tangible things as defined in Rule 34(a) of the Federal Rules
of Civil Procedure or any applicable local rule) that are produced or disclosed pursuant to
the Subpoenas.
2.

Definitions
As used in this Protective Order:
a.

“Copy” or “Copies” shall mean any depiction, reproduction, or sample of
any document, material, tangible thing, audio or video tape, computer disk,
flash drive, hard drive, or information, regardless of format, by
photographic, scanning, imaging, recording, manual input, or other
electronic, magnetic, optical, or manual reproduction means.

b.

“Counsel” shall mean Kobre & Kim LLP for Sylvia and Eliane, Mayer
Brown LLP for the Gertrudes Group; additional counsel who may file
notices of appearance in this proceeding; and other counsel who have
executed Exhibit A, including all attorneys, staff, and clerical and support
personnel affiliated with or employed by such counsel.

c.

“Probate Court Proceedings” shall mean: (i) probate proceedings
concerning the Estate of Emanuel Benedek, Proceeding No. 04584221.2016.8.26.0100, in Fifth Family and Probate Court of the Central
District of São Paulo, Brazil (the “Probate Court”); (ii) the Klein v. Benedek
Ação de Sonegados, Proceeding No. 1018413-40.2020.8.26.010, also in the

2

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page33ofof14
14

Probate Court; and, (iii) appeals, motions and applications in Brazil and
taken from or arising in (i) and (ii) above.
d.

“Additional Brazilian Proceedings” shall mean actions or proceedings in
the Brazilian courts, other than the Probate Court Proceedings, to
investigate or to assert claims relating to Emanuel Benedek’s estate and his
patrimony, and appeals, motions and applications taken from or arising
therein.

e.

“Other Country Proceedings” means actions or proceedings in the courts of
any country other than Brazil, and appeals, motions and applications taken
from or arising therein, in which the use of CONFIDENTIAL.
INFORMATION has been authorized under Section 4.c and 4.c below.

f.

“S&E Litigation” means the Probate Court Proceedings, any Additional
Brazilian Proceedings and any Other Country Proceedings.

g.

“Party” or “Parties” shall mean Sylvia and Eliane and the members of the
Gertrudes Group.

h.

“Advisors” shall mean the spouses and children of Sylvia and Eliane.

i.

“Mediators” shall mean persons, if any, appointed to mediate disputes
between Sylvia and Eliane on the one hand and members of the Gertrudes
Group on the other concerning Emanuel Benedek’s estate and his
patrimony.

j.

“Prohibition Order” shall mean a ruling of this Court that a proposed use of
CONFIDENTIAL INFORMATION is not authorized under this Protective
Order.

3

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page44ofof14
14

k.

“Stay Order” shall mean an interim order forbidding the proposed use of
CONFIDENTIAL INFORMATION during the pendency of an application
for a Prohibition Order.

3.

General Limitation on Use of Confidential Information
Produced Records designated under Section 6 below as CONFIDENTIAL

INFORMATION may be used by Sylvia and Eliane only to investigate or to assert claims
relating to Emanuel Benedek’s estate and his patrimony and for no other purpose. The
restrictions on use of CONFIDENTIAL INFORMATION imposed herein apply equally to
excerpts, summaries, compilations, or other derivatives of CONFIDENTIAL
INFORMATION.
4.

Specific Uses
a.

CONFIDENTIAL INFORMATION may be used in the Probate Court
Proceedings and in any Additional Brazilian Proceedings.

b.

CONFIDENTIAL INFORMATION may be used to pursue additional
discovery in the United States under 28 U.S.C. § 1782 for the purpose of
investigating claims relating to Emanuel Benedek’s estate and his
patrimony, but prior to such use Sylvia and Eliane shall meet and confer
with Gertrudes Group Counsel (a) to seek consent; (b) to discuss the form
and manner of notice to affected persons other than the Gertrudes Group;
and, (c) any relevant partial sealing questions. Future applications under
§ 1782 shall be on notice to Gertrudes Group Counsel.

c.

Except as provided in paragraph 4.b above for additional applications under
28 U.S.C. § 1782, should Sylvia and Eliane desire to use CONFIDENTIAL
INFORMATION in the courts of any country other than Brazil, they shall
deliver notice to Gertrudes Group Counsel of the proposed use, identifying

4

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page55ofof14
14

the CONFIDENTIAL INFORMATION to be used and specifying the
forum, the nature of the action, the action’s docket number if available, the
parties, and the relief sought, together with an explanation of how the
proposed use represents the investigation or assertion of claims relating to
Emanuel Benedek’s estate and his patrimony. From delivery of that notice,
the Gertrudes Group or any other affected person will have 21 days
to obtain either a Stay Order or a Prohibition Order. If neither a Stay Order
nor a Prohibition Order is in place at 12:00 P.M. New York on the first day
the Court is generally open for business at least 21 days from delivery of
the notice, then Sylvia and Eliane may proceed with the proposed use of
CONFIDENTIAL INFORMATION. For purposes of this paragraph, the
Court is not considered generally open for business on the Wednesday
before and the Friday after Thanksgiving.
5.

Confidential Information Defined
“CONFIDENTIAL INFORMATION” shall mean Produced Records that reflect or

contain (i) proprietary information, personal financial information, or commercially
sensitive information that would not normally be revealed to third parties without a
confidentiality obligation. CONFIDENTIAL INFORMATION does not include
information that is generally available to the public. To the extent CONFIDENTIAL
INFORMATION becomes public information through breach of this Protective Order,
such material will remain CONFIDENTIAL INFORMATION.
6.

Designation Process
a.

Every time an Institution produces documents, a set will be provided to
Gertrudes Group Counsel, who will review the documents and designate
with a stamp those documents they believe contain CONFIDENTIAL

5

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page66ofof14
14

INFORMATION as it is defined in Section 5 above. The designations are
to be supplied to Sylvia and Eliane within ten business days of receipt by
Gertrudes Group Counsel, except that designations for documents received
by Gertrudes Group Counsel prior to the entry of this Protective Order are
due 14 days after that entry.
7.

Access to Confidential Information
a.

CONFIDENTIAL INFORMATION shall be made available only to those
persons identified as QUALIFIED PERSONS, as defined in Section 8
herein.

b.

Access to CONFIDENTIAL INFORMATION shall be permitted only to
persons having access thereto under the terms of this Protective Order. No
CONFIDENTIAL INFORMATION shall be permanently retained or
stored at the offices or facilities of Sylvia and Eliane, their Counsel or other
QUALIFIED PERSONS after the conclusion of the S&E Litigation.

c.

Nothing in this Protective Order shall prevent a Party from using any
CONFIDENTIAL INFORMATION in a hearing, trial, proceeding, or
appeal in the S&E Litigation, provided that Sylvia and Eliane shall take
reasonable steps to obtain an order to file CONFIDENTIAL
INFORMATION under seal under applicable forum law, to the extent that
proceedings are not already sealed.

d.

In the event that the S&E Litigation is terminated, or Sylvia and Eliane
cease to engage in the litigation of the S&E Litigation, access by
QUALIFIED PERSONS to the CONFIDENTIAL INFORMATION shall
be terminated, and the provisions of this Protective Order shall otherwise
remain in full force and effect as to such QUALIFIED PERSON.
6

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page77ofof14
14

However, notwithstanding this requirement, Parties and their Counsel may
retain CONFIDENTIAL INFORMATION incorporated into court filings,
pleadings, motions and trial briefs, written discovery responses, trial
transcripts, attorney work product, and communications for archival
purposes. The receiving Party shall verify the return or destruction by
affidavit furnished to the producing Party, upon the producing Party’s
request.
e.

Notwithstanding any other provision, no document may be filed with the
Clerk of this Court 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, 119–20 (2d Cir. 2006), and any
other controlling authority. Unless otherwise ordered, a party seeking to file
an opposing party’s confidential information shall so advise the opposing
party fourteen (14) days in advance specifying the precise portion of the
information 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 party whose confidential information is sought to be used
may make an application to seal in accordance with the procedure laid out
earlier in this paragraph, 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

7

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page88ofof14
14

expressly authorized by Rule 5.2 may be made without further application
to the Court.
8.

Persons Permitted to Access Confidential Information
The Parties and counsel for the Parties shall not disclose or permit the disclosure of

any Confidential Information to any person or entity except “QUALIFIED PERSONS.”
“QUALIFIED PERSONS” are defined as: (i) the Parties; (ii) Counsel; (iii) an Advisor or
Mediator who has executed an Agreement to Abide by Protective Order in the form
attached hereto as Exhibit A; (iv) consultants and retained experts of a Party, but only to
the extent that any Counsel of Sylvia and Eliane or the Gertrudes Group determine in good
faith that the consultant or retained expert’s assistance is reasonably necessary, and only
after the proposed expert or consultant has executed an Agreement to Abide by Protective
Order in the form attached hereto as Exhibit A; (v) this Court and the courts before which
the S&E Litigation is conducted; (vi) court reporters and recorders serving the S&E
Litigation; (vii) those persons specifically engaged for the limited purpose of making
copies of documents or organizing or processing documents, including outside vendors
hired to process electronically stored documents, but only after those persons have
executed an Agreement to Abide by Protective Order in the form attached hereto as
Exhibit A; (viii) witnesses at depositions, trial, or other proceedings, to whom disclosure is
reasonably necessary, except such witnesses shall not retain a copy of documents
containing Confidential Information, except in connection with review of any transcript
associated with the S&E Litigation, but only after such witness has executed an
Agreement to Abide by Protective Order in the form attached hereto as Exhibit A; (ix) the
author or recipient of the document (not including a person who received the document in
the course of litigation) and persons whose CONFIDENTIAL INFORMATION they

8

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page99ofof14
14

contain; and, (x) other persons only by written consent of Gertrudes Group Counsel or
upon order of this Court, in either event on such conditions as may be agreed or ordered.
9.

Procedure to Challenge Confidential Status of a Given Produced Record
a.

At any time Sylvia and Eliane may ask Gertrudes Group Counsel in writing
to agree that a CONFIDENTIAL INFORMATION designation be removed
from a given Produced Record. Gertrudes Group Counsel will respond in
writing within seven calendar days, or on or before the following business
day if the seventh calendar day falls on a weekend or holiday, either
(a) agreeing that the Produced Record in question need not be treated as
CONFIDENTIAL INFORMATION, or (b) explaining their reasons for
refusing to agree. If Sylvia and Eliane are not satisfied with the
explanation, a meet-and-confer process will precede any application to ask
this Court to remove the designation.

b.

Notwithstanding any objections as described above, Produced Records
designated as CONFIDENTIAL INFORMATION shall be treated as such
and shall be subject to the provisions hereof unless and until the Gertrudes
Group agrees, or this Court orders, otherwise.

c.

Any disclosure of CONFIDENTIAL INFORMATION under this Order
shall not serve as a basis for challenging the designation of the
CONFIDENTIAL INFORMATION in question.

10.

No Waiver or Limitation
Nothing in this Protective Order shall be construed to limit the Gertrudes Group’s

use of its own documents, things, or information, nor shall anything in this Order prevent
Gertrudes Group from disclosing CONFIDENTIAL INFORMATION to any person.

9

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page10
10ofof14
14

CONFIDENTIAL INFORMATION subsequently voluntarily made public by Gertrudes
Group will no longer be treated as CONFIDENTIAL INFORMATION.
11.

Inadvertent or Unintentional Disclosure of Protected Information
a.

If any CONFIDENTIAL INFORMATION is disclosed, inadvertently or
otherwise, to a person other than a QUALIFIED PERSON then: (i) the
person disclosing the information shall use its best efforts to retrieve the
information and ensure that any copies thereof disclosed to such other
person or party are promptly destroyed; (ii) such person shall be informed
promptly of all the provisions of this Protective Order by the disclosing
person; (iii) such person shall be identified immediately to the Gertrudes
Group; and (iv) the person to whom disclosure was made shall be requested
to sign an Agreement to Abide by Protective Order in the form of Exhibit A
hereto. The signed Agreement shall then be served on the Gertrudes Group.

b.

Nothing in this Section shall affect the Gertrudes Group’s remedies under
this Protective Order or otherwise for unauthorized disclosure of
CONFIDENTIAL INFORMATION.

12.

Survival of Obligations
a.

All of the provisions of this Protective Order shall survive the conclusion of
the S&E Litigation and shall continue to be binding after the conclusion of
the S&E Litigation unless subsequently modified by agreement among the
Parties or by order of this Court.

b.

For purposes of enforcing this Protective Order and resolving any disputes
arising hereunder, Sylvia, Eliane and the Gertrudes Group consent to
continuing jurisdiction of this Court.

10

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page11
11ofof14
14

13.

Relief From Protective Order
Entry of this Protective Order shall be without prejudice to the application by any

person:
a.

for relief from any restriction contained herein; or

b.

for any order compelling or further restricting the production or use of any
Produced Records.

The parties may amend or modify any provision of this Order by mutual
agreement, which shall become effective when embodied in a written stipulation approved
by this Court.
14.

Persons Bound
This Order shall take effect when entered and shall be binding upon the Parties,

their Counsel, and persons made subject to this Order, including those who execute
Exhibit A.
SO ORDERED.
Dated: New York, New York

18 2023
January ____,

_________________________________
Hon. P. KEVIN CASTEL
United States District Judge

11

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page12
12ofof14
14

Exhibit A
Qualified Person
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
– – – – – – – – – – – – – – – – – – – – x
In re Ex Parte Application of

:

SYLVIA BENEDEK KLEIN and ELIANE
BENEDEK SEGAL,

:
:

20 Misc. 203 (PKC)
ECF Case
AGREEMENT TO ABIDE
BY PROTECTIVE ORDER

Applicants.
:
– – – – – – – – – – – – – – – – – – – – x
I,

_________________________, being duly sworn, state that:

1.

My address is _____________________________________________________
_________________________________________________________________

2.

My present occupation or job description is _____________________________
_________________________________________________________________

3.

I hereby acknowledge that I have read the “Stipulated Protective Order”
(“PROTECTIVE ORDER”) herein, that I am familiar with the terms thereof, and
that I agree to be bound by the terms thereof.

4.

I hereby acknowledge that, pursuant to the PROTECTIVE ORDER, I may receive
or have already inadvertently received information designated as
CONFIDENTIAL INFORMATION in this proceeding, and certify my
understanding that such information is provided to me pursuant to the terms and
restrictions of the PROTECTIVE ORDER. I agree not to reveal any
CONFIDENTIAL INFORMATION or any notes containing CONFIDENTIAL
INFORMATION to anyone not authorized to receive such information pursuant to

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page13
13ofof14
14

the terms of the PROTECTIVE ORDER, and I agree not to use, directly or
indirectly, or allow the use of any CONFIDENTIAL INFORMATION for any
purpose other than directly associated with my duties in this litigation.
5.

I understand that I am to retain all copies of the materials that I receive which have
been designated as containing or reflecting CONFIDENTIAL INFORMATION in
a container, cabinet, drawer, room or other safe place in a manner consistent with
the PROTECTIVE ORDER. I understand that all copies of any such materials are
to remain in my custody until the conclusion of the S&E Litigation (as defined in
the Protective Order) or the completion of my assigned duties, whichever comes
first, whereupon the copies are to be returned to Counsel for the Gertrudes Group
(as defined in the Protective Order) and electronic copies destroyed. Such return
and destruction shall not relieve me from the obligations imposed upon me by the
PROTECTIVE ORDER.

6.

I further agree to notify any support personnel (such as paralegals, administrative
assistants, secretaries, clerical and administrative staff) who are necessary to assist
me of the terms of the PROTECTIVE ORDER and of their obligation not to reveal
any CONFIDENTIAL INFORMATION to anyone not authorized to receive such
information pursuant to the terms of the PROTECTIVE ORDER.

7.

I understand that I shall be subject to the jurisdiction of the U.S. District Court for
the Southern District of New York in any proceeding relating to my performance
under, compliance with, or violation of the PROTECTIVE ORDER.

8.

I further understand that the PROTECTIVE ORDER is enforceable under the laws
applicable in the U.S. District Court for the Southern District of New York. If I
violate the PROTECTIVE ORDER in any manner, I may be subject to remedies

2

Case
Case1:20-mc-00203-PKC
1:20-mc-00203-PKC Document
Document101-1
102 Filed
Filed01/18/23
01/17/23 Page
Page14
14ofof14
14

and/or penalties as the U.S. District Court for the Southern District of New York
may deem appropriate.
Signature: ____________________
Date: _________________________

3