In Re: Iszo Capital LP

Filing 53

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Gregory H. Woods on 1/6/2021) (mro)

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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
UNITED STATES DISTRICT COURT
DATE FILED: 1/6/2021
SOUTHERN DISTRICT OF NEW YORK

MEMORANDUM ENDORSED

In re Application of

Case No. 1:20-mc-00370-GHW

ISZO CAPITAL LP,

STIPULATED CONFIDENTIALITY
AGREEMENT AND PROTECTIVE
ORDER

Petitioner, for an Order Pursuant to 28 U.S.C.
§ 1782 to Conduct Discovery for Use in a
Foreign Proceeding.
GREGORY H. WOODS, District Judge:

WHEREAS, petitioner IsZo Capital LP and respondent J. Frank Associates d/b/a Joele
Frank, Wilkinson, Brimmer, Katcher (together, the “Parties” and each individually, a “Party”)
request that this Court issue a protective order pursuant to Federal Rule of Civil Procedure 26(c)
to protect the confidentiality of nonpublic and competitively sensitive information that they may
need to disclose in connection with discovery in this action and in the action captioned In The
Matter of Nam Tai Property Inc., Claim No. BVIHC (COM) 2020/0165 pending before the High
Court of Justice (the “BVI Court”) in the British Virgin Islands (the “BVI Proceeding,” and
together with this action the “Actions”);
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds that good cause exists for issuance of an appropriately
tailored confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that the Parties to this action, their respective officers,
agents, servants, employees, and attorneys, any other person in active concert or participation
with any of the foregoing, and all other persons with actual notice of this Order will adhere to the
following terms, upon pain of contempt:

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1.

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

produced or disclosed in the course of discovery in this action) that a person has designated as
“Confidential” pursuant to this Order, no person subject to this Order may disclose such
Confidential Discovery Material to anyone else except as expressly permitted hereunder:
2.

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

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

previously non-disclosed financial information (including without
limitation profitability reports or estimates, percentage fees, design fees,
royalty rates, minimum guarantee payments, sales reports, and sale
margins);

(b)

previously non-disclosed material relating to ownership or control of any
non-public company;

(c)

previously non-disclosed business plans, product-development
information, or marketing plans;

(d)

any information of a personal or intimate nature regarding any individual;
or

(e)

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

3.

With respect to the Confidential portion of any Discovery Material other

than deposition transcripts and exhibits, the Producing Party or its counsel may designate such
portion as “Confidential” by: (a) stamping or otherwise clearly marking as “Confidential” the
protected portion in a manner that will not interfere with legibility or audibility; and (b)

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producing for future public use another copy of said Discovery Material with the confidential
information redacted.
4.

A Producing Party or its counsel may designate deposition exhibits or

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

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

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

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

Party or person of its right to object to any discovery request; (b) a waiver of any privilege or

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protection; or (c) a ruling regarding the admissibility at trial of any document, testimony, or other
evidence.
7.

Where a Producing Party has designated Discovery Material as

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

the parties to the Actions, their insurers, and counsel to their insurers;

(b)

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

(c)

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

(d)

any mediator or arbitrator engaged in the Actions, provided such person
has first executed a Non-Disclosure Agreement in the form annexed as
Exhibit A hereto;

(e)

as to any document, its author, its addressee, and any other person
indicated on the face of the document as having received a copy;

(f)

any witness who counsel in good faith believes may be called to testify at
trial or deposition in this action the Actions, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto;

(g)

any person retained to serve as an expert witness or otherwise provide
specialized advice to counsel in connection with the Actions, provided

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such person has first executed a Non-Disclosure Agreement in the form
annexed as Exhibit A hereto;
(h)

stenographers engaged to transcribe testimony in the Actions; and

(i)

this Court, the BVI Court, any appellate court reviewing the Actions, and
any court personnel, and/or court reporters.

8.

Before disclosing any Confidential Discovery Material to any person

referred to in subparagraphs 7(d), 7(f), or 7(g) above, counsel must provide a copy of this Order
to such person who must sign a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto stating that he or she has read this Order and agrees to be bound by its terms. Said counsel
must retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to
opposing counsel either before such person is permitted to testify (at deposition or trial) or at the
conclusion of the case, whichever comes first.
9.

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

Discovery Materials so classified. The Court has not, however, made any finding regarding the
confidentiality of any Discovery Materials, and retains full discretion to determine whether to
afford confidential treatment to any Discovery Material designated as Confidential hereunder.
All persons are placed on notice that the Court is unlikely to seal or otherwise afford confidential
treatment to any Discovery Material introduced into evidence at trial, even if such material has
previously been sealed or designated as Confidential.
10.

In filing Confidential Discovery Material with this Court, or filing

portions of any pleadings, motions, or other papers that disclose such Confidential Discovery
Material (“Confidential Court Submission”), the Parties shall publicly file a redacted copy of the
Confidential Court Submission via the Electronic Case Filing System. In accordance with

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Rule 4(A) of the Court’s Individual Rules of Practice in Civil Cases, the Parties shall file an
unredacted copy of the Confidential Court Submission under seal with the Clerk of this Court,
and the Parties shall serve this Court and opposing counsel with unredacted courtesy copies of
the Confidential Court Submission. In accordance with Rule 4(A) of this Court’s Individual
Rules of Practice in Civil Cases, any Party that seeks to file Confidential Discovery Material
under seal must file an application and supporting declaration justifying—on a particularized
basis—the sealing of such documents. The parties should be aware that the Court will unseal
documents if it is unable to make “specific, on the record findings … demonstrating that closure
is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006).
11.

Any Party who objects to any designation of confidentiality may at any

time before the trial of this action serve upon counsel for the Producing Party a written notice
stating with particularity the grounds of the objection. If the Parties cannot reach agreement
promptly, counsel for all affected Parties will address their dispute to this Court in accordance
with paragraph 2(C) of this Court’s Individual Practices.
12.

Any Party who requests additional limits on disclosure (such as

“attorneys’ eyes only” in extraordinary circumstances), may at any time before the trial of this
action serve upon counsel for the recipient Parties a written notice stating with particularity the
grounds of the request. If the Parties cannot reach agreement promptly, counsel for all affected
Parties will address their dispute to this Court in accordance with Rule 2(C) of this Court’s
Individual Rules of Practice in Civil Cases.
13.

Recipients of Confidential Discovery Material under this Order may use

such material solely for the prosecution and defense of the Actions and/or any appeals, and not

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for any other purpose or in any other litigation proceeding. Nothing contained in this Order,
however, will affect or restrict the rights of any Party with respect to its own documents or
information produced in this action.
14.

Nothing in this Order will prevent any Party from producing any

Confidential Discovery Material in its possession in response to a lawful subpoena or other
compulsory process, or if required to produce by law or by any government agency having
jurisdiction, provided that such Party gives written notice to the Producing Party as soon as
reasonably possible, and if permitted by the time allowed under the request, at least 10 days
before any disclosure. Upon receiving such notice, the Producing Party will bear the burden to
oppose compliance with the subpoena, other compulsory process, or other legal notice if the
Producing Party deems it appropriate to do so.
15.

Each person who has access to Discovery Material designated as

Confidential pursuant to this Order must take all due precautions to prevent the unauthorized or
inadvertent disclosure of such material.
16.

Within 60 days of the final disposition of the BVI Proceeding—including

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

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correspondence, or attorney work product, even if such materials contain Confidential Discovery
Material. Any such archival copies that contain or constitute Confidential Discovery Material
remain subject to this Order.
17.

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

to be binding upon all persons subject to this Order to whom Confidential Discovery Material is
produced or disclosed.
18.

This Court will retain jurisdiction over all persons subject to this Order to

the extent necessary to enforce any obligations arising hereunder or to impose sanctions for any
contempt thereof.
SO STIPULATED AND AGREED.
OLSHAN FROME WOLOSKY LLP

DAVIS & GILBERT LLP

/s/ Adrienne M. Ward

/s/ Marc J. Rachman

Dated:

Dated: January 5, 2021

January 5, 2021

SO ORDERED.
Dated: January 6, 2021

GREGORY H. WOODS
United States District Judge

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Exhibit A
to Stipulated Confidentiality
Agreement and Protective Order
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re Application of

Case No. 1:20-mc-00370-GHW

ISZO CAPITAL LP,

NON-DISCLOSURE AGREEMENT

Petitioner, for an Order Pursuant to 28 U.S.C.
§ 1782 to Conduct Discovery for Use in a
Foreign Proceeding.
I, _______________, acknowledge that I have read and understand the Protective Order
in this action governing the non-disclosure of those portions of Discovery Material that have
been designated as Confidential. I agree that I will not disclose such Confidential Discovery
Material to anyone other than for purposes of the Actions and that at the conclusion of the
litigation I will return all discovery information to the Party or attorney from whom I received it.
By acknowledging these obligations under the Protective Order, I understand that I am
submitting myself to the jurisdiction of the United States District Court for the Southern District
of New York for the purpose of any issue or dispute arising hereunder and that my willful
violation of any term of the Protective Order could subject me to punishment for contempt of
Court.

Name:
Date:

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