Spatafora v. Town Sports International Holdings, Inc.
Filing
51
PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED., Motions terminated: 50 JOINT MOTION for Protective Order . filed by Town Sports International Holdings, Inc. (Signed by Judge Alvin K. Hellerstein on 9/19/22) (yv)
Case 1:21-cv-00477-AKH Document 50-1 Filed 09/15/22 Page 1 of 8
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Case No. 1:21-cv-477 (AKH)
CAROLYN SPATAFORA,
PROTECTIVE ORDER
Plaintiff,
v.
TOWN SPORTS INTERNATIONAL
HOLDINGS, INC.,
Defendant.
The Court having found that good cause exists for issuance of an appropriately tailored
confidentiality order governing the pre-trial phase of this action, and the parties having stipulated
to the following provisions, it is hereby ORDERED that any person subject to this Order –
including without limitation the parties to this action, their attorneys, representatives, agents,
experts and consultants, acting as such, all third parties providing discovery in this action, and all
other interested persons with actual or constructive notice of this Order shall adhere to the
following terms, upon pain of contempt:
Discovery Materials May Be Designated as Confidential
1.
Any person subject to this Order who receives from any other person any
“Discovery Material” (i.e., information of any kind provided in the course of discovery in this
action) that is designated as “Confidential” pursuant to the terms of this Order shall not disclose
such Confidential Discovery Material to anyone else except as expressly permitted hereunder.
2.
The person producing Discovery Material may designate as “Confidential” any
portion thereof that contains non-public business, commercial, financial, or personal information,
the public disclosure of which is either restricted by law or would likely, in the good faith opinion
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of the producing person, seriously harm the producing person’s business, commercial, financial,
or personal interests or cause the producing person to violate his, her, or its privacy or
confidentiality obligations to others. Where the confidential portion is reasonably separable from
the non-confidential portion, via redaction or otherwise, only the confidential portion shall be so
designated.
3.
With respect to the confidential portion of any Discovery Material other than
deposition transcripts and exhibits, the producing person or that person’s counsel may designate
such portion as “Confidential” by stamping or otherwise clearly marking as “Confidential” the
document or protected portion in a manner that will not interfere with legibility or audibility.
Deposition testimony may be designated as “Confidential” either on the record during the
deposition or in writing within five (5) business days of receipt of the transcript. If so designated,
the final transcript of the designated testimony shall be bound in a separate volume and marked
“Confidential Information Governed by Protective Order” by the reporter.
4.
If at any time prior to the trial of this action, a producing person realizes that some
portion of Discovery Material that that person previously produced without limitation should be
designated as “Confidential,” the producing person may so designate that portion by promptly
notifying all parties in writing. Such designated portion of the Discovery Material will thereafter
be treated as Confidential under the terms of this Order. In addition, the producing person shall
provide each other party with replacement versions of such Discovery Material that bears the
“Confidential” designation within two (2) business days of providing such notice.
Who May Receive Confidential Materials
5.
No person subject to this Order, other than the producing person, shall disclose
any Confidential Discovery Material to any other person whomsoever, except to:
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(a) the parties to this action;
(b) counsel retained specifically for this action, including any paralegal, clerical or other
assistant employed by such counsel and assigned specifically to work on this action;
(c) as to any document, its author, its addressee, and any other person shown on the face
of the document as having received a copy;
(d) any witness who counsel for a party in good faith believes may be called to testify at
trial or deposition in this action, provided such person has first executed a NonDisclosure Agreement in the form annexed hereto;
(e) any person retained by a party to serve as an expert witness or consultant or otherwise
provide specialized advice to counsel in connection with this action, provided such
person has first executed a Non-Disclosure Agreement in the form annexed hereto;
(f) stenographers and video technicians engaged to transcribe or record depositions
conducted in this action;
(g) independent photocopying, graphic production services, or other litigation support
services employed by the parties or their counsel to assist in this action, including
computer service personnel performing duties in relation to a computerized litigation
system;
(h) the Court and its staff; and
(i) any other person whom the producing person, or other person designating the
Discovery Material “Confidential,” agrees in writing may have access to such
Confidential Discovery Material.
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6.
Prior to the disclosure of any Confidential Discovery Material to any person
referred to in subparagraphs 5(d) or 5(e) above, such person shall be provided by counsel with a
copy of this Protective Order and shall sign a Non-Disclosure Agreement, in the form annexed
hereto, stating that that person has read this Order and agrees to be bound by its terms. Counsel
shall retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to opposing
counsel either prior to such person being permitted to testify (at deposition or trial) or at the
conclusion of the case, whichever comes first.
Filing Confidential Materials in this Action
7.
Court records and docket sheets are to be accessible to the public, and enjoy a
presumption of openness to public inspection. The presumption "is rebuttable upon
demonstration that suppression is essential to preserve higher values and is narrowly tailored to
serve that interest." The Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 96 (2d Cir. 2004)
(internal quotation marks and citations omitted). No protective order shall be submitted that
provides for sealing of documents or other information in connection with a submission to the
Court, except following a motion supported by competent evidence showing that sealing is
essential to preserve higher values and is narrowly tailored to serve that interest.
8.
Any person who either objects to any designation of confidentiality, or who, by
contrast, requests still further limits on disclosure (such as “attorneys’ eyes only,” reserved for
extraordinary circumstances), may at any time prior to the trial of this action serve upon the
designating person and all other parties a written notice stating with particularity the grounds of
the objection or request. If agreement cannot be reached promptly, counsel for all affected
persons shall request a joint telephone call with the Court to obtain a ruling.
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9.
Notwithstanding the designation of material as “Confidential” in discovery, there
is no presumption that such Confidential Discovery Material will be filed with the Court under
seal. The parties shall follow Judge Hellerstein’s Individual Practices with respect to pretrial
requests for filing under seal, as referenced in paragraph 7 above.
10.
All persons are hereby placed on notice that the Court is unlikely to seal or
otherwise afford confidential treatment to any Discovery Material introduced in evidence at trial,
even if such material was previously designated as Confidential or sealed during pretrial
proceedings.
11.
Each person who has access to Confidential Discovery Material shall take all due
precautions to prevent the unauthorized or inadvertent disclosure of such material.
Inadvertent Disclosure of Privileged Materials
12.
If, in connection with this litigation, and despite having taken reasonable steps to
prevent the disclosure of information that it claims is subject to a claim of attorney-client
privilege or attorney work product, a producing person inadvertently discloses information
subject to a claim of attorney-client privilege or attorney work product protection (“Inadvertently
Disclosed Information”), such disclosure, in itself, shall not constitute or be deemed a waiver or
forfeiture of any claim of privilege or work product protection with respect to the Inadvertently
Disclosed Information and its subject matter.
13.
If a disclosing person makes a claim of inadvertent disclosure, all receiving
persons shall, within five (5) business 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.
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14.
Within five (5) business days of the notification that such Inadvertently Disclosed
Information has been returned or destroyed, the disclosing person shall produce a privilege log
with respect to the Inadvertently Disclosed Information.
15.
If a receiving person thereafter moves the Court for an order compelling
production of the Inadvertently Disclosed Information, that motion shall be filed under seal, and
shall not assert as a ground for entering such an order the mere fact of the inadvertent production.
The disclosing person 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 an in camera review of the Inadvertently Disclosed Information.
Termination of the Litigation
16.
This Protective Order shall survive the termination of the litigation. Within 30
days of the final disposition of this action, all Confidential Discovery Material and all copies
thereof, shall be promptly returned to the producing person, or, upon permission of the producing
person, destroyed.
17.
During the pendency of this case only, this Court shall 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.
[intentionally left blank]
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SO STIPULATED.
For Plaintiff:
For Defendant:
/s/ Peter G. Goodman
Peter G. Goodman
Law Office of Peter G. Goodman, PLLC
30 Broad Street, 37th Floor
New York, NY 10004
peter@goodmanpllc.com
/s/
Massimo D’Angelo
AKERMAN LLP
1251 Avenue of the Americas
37th Floor
New York, NY 10020
massimo.dangelo@akerman.com
Counsel for Plaintiff Carolyn Spatafora
Counsel for Defendant Town Sports
International Holdings, Inc.
SO ORDERED.
/s/ Alvin K. Hellerstein
ALVIN HELLERSTEIN
United States District Judge
September, 19, 2022
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Case 1:21-cv-00477-AKH Document 50-1 Filed 09/15/22 Page 8 of 8
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Case No. 1:21-cv-477 (AKH)
CAROLYN SPATAFORA,
NON-DISCLOSURE AGREEMENT
Plaintiff,
v.
TOWN SPORTS INTERNATIONAL
HOLDINGS, INC.,
Defendant.
I, __________________________ [print name], 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 this litigation 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.
Dated: _______________
____________________________________
[Signature]
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