Global Refining Group, Inc. v. PMD Analysis Inc. et al

Filing 82

STIPULATED AMENDED CONFIDENTIALITY AGREEMENT PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Gregory H. Woods on 11/17/2021) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
GLOBAL REFINING GROUP, INC.,
:
Plaintiff,
-against-

:
:

PMD ANALYSIS INC. a/k/a ANALYSE PMD :
INC., ROBERT TURCOTTE, and MONICA
ARMSTRONG,
:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 11/17/21
Case No.: 1:21-cv-00532-GHW
STIPULATED AMENDED
CONFIDENTIALITY AGREEMENT
AND PROTECTIVE ORDER

Defendants.

:
-------------------------------------- X
GREGORY H. WOODS, District Judge:
WHEREAS, all of the parties to this action (collectively, 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;
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:
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”
or “Attorney Eyes Only” pursuant to this Order, no person subject to this Order may disclose such

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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 nonpublic 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.
By placing the phrase “Attorney Eyes Only” on a document, the producing party designates
that document as one to be viewed only by the Court, by attorneys of record, and/or by expert
consultants retained in this proceeding, who may not disclose the content of the document to their
client except with the written consent of the producing party or by order of the Court. The
“Attorney Eyes Only” designation is only permissible if the material so designated is of a
particularly sensitive nature that the opposing party’s knowledge of it has a reasonable potential
to cause significant harm to the designating party or a third party. A party may challenge the
designation of a document as “Attorney Eyes Only” pursuant to paragraph 11 below.
3.

With respect to the Confidential portion of any Discovery Material other than

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deposition transcripts and exhibits, the Producing Party or its counsel may designate such portion
as “Confidential” or “Attorney Eyes Only” by: (a) stamping or otherwise clearly marking as
“Confidential” or “Attorney Eyes Only” the protected portion in a manner that will not interfere
with legibility or audibility; and (b) 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,” or “Attorney Eyes Only” 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” or “Attorney Eyes Only” 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” or “Attorney Eyes Only”.
In addition, the Producing Party shall provide each other Party with replacement versions of such
Discovery Material that bears the “Confidential” or “Attorney Eyes Only” designation within two

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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 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 this action, their insurers, and counsel to their insurers;
(b) counsel retained specifically for this action, including any paralegal, clerical, or
other assistant that such outside counsel employs and assigns to this matter; outside
vendors or service providers (such as copy-service providers and documentmanagement consultants) that counsel hire and assign to this matter;
(c) any mediator or arbitrator that the Parties engage in this matter or that this Court
appoints, provided such person has first executed a Non-Disclosure Agreement in
the form annexed as Exhibit A hereto;
(d) as to any document, its author, its addressee, and any other person indicated on the
face of the document as having received a copy;
(e) 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 as Exhibit A hereto;
(f) any person a Party retains to serve as an expert witness 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 as Exhibit A
hereto;

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(g) stenographers engaged to transcribe depositions the Parties conduct in this action;
(h) this Court, including any appellate court, its support personnel, and court reporters;
and
(i) this Court, including any appellate court, its support personnel, and court reporters.
Where a producing party has designated Discovery Material as “Attorney Eyes Only”,
other persons subject to this Order may disclose such information only to those persons identified
in paragraphs (b), (c), (d), (e), (g), (h) and (i) above.
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

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(“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 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.

Recipients of Confidential Discovery Material under this Order may use such

material solely for the prosecution and defense of this action and any appeals thereto, and not 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.
13.

Nothing in this Order will prevent any Party from producing any Confidential

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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.
14.

Each person who has access to Discovery Material designated as “Confidential” or

“Attorney Eyes Only” pursuant to this Order must take all due precautions to prevent the
unauthorized or inadvertent disclosure of such material.
15.

Within 60 days of the final disposition of this action—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, 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.
16.

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

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binding upon all persons subject to this Order to whom Confidential Discovery Material is
produced or disclosed.
17.

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:
Dated: New York, New York
September 3, 2021

Dated: New York, New York
September 3, 2021

LEWIS & LINN LLC
Attorneys for Plaintiff

TARTER KRINSKY & DROGIN LLP
Attorneys for Defendants

/s/ Justin Mercer

/s/ Nels Lippert

Brett E. Lewis
Justin Mercer
77 Sands Street, 6th Floor
Brooklyn, NY 11201
Tel.: [phone]
Fax: [phone]
Email: [e-mail]

Philip Braginsky
Nels Lippert
Brittany K. Lazzaro
1350 Broadway
New York, New York 10018
Tel.: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

Email: [e-mail]

Dated:

New York, New York
November 17, 2021

SO-ORDERED:
___________________________________
HON. GREGORY H. WOODS
UNITED STATES DISTRICT JUDGE

EXHIBIT A
8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
GLOBAL REFINING GROUP, INC.,
:
Plaintiff,

Case No.: 1:21-cv-00532-GHW

:

-against-

:

NON-DISCLOSURE AGREEMENT

PMD ANALYSIS INC. a/k/a ANALYSE PMD :
INC., ROBERT TURCOTTE, and MONICA
ARMSTRONG,
:
Defendants.

:
-------------------------------------- X
I, __________________, acknowledge that I have read and understand the Stipulated
Amended Confidentiality Agreement and Protective Order (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 disclosure such Confidential Discovery Material to anyone
other than for the 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.
______________________________
Name:
Date:

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