Smart et al v. Scott et al

Filing 23

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 1/10/2022) (mml)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------- X
GRETHA SMART, et al.,
Plaintiffs,

21-CV-3420 (NRB)

-against-

STIPULATED
PROTECTIVE ORDER

SHARICE SCOTT, et al.,
Defendants.
---------------------------------------------------------------X
WHEREAS, Plaintiff Gretha Smart, individually and on behalf of C.C. and H.C., and
Justin Lopez. ("Plaintiffs"), filed this action on or about April 20, 2021, against Defendants
Sharice Scott, Sharon St. Hill, Joy Headley, Phoebus Widjaja, Anne Idowu, Janye Nwankwo,
Iyeisha Witherspoon, and the City of New York (collectively, "Defendants," and with Plaintiffs,
the "Parties") and
WHEREAS, the Parties are engaged in discovery in this action that requires the
production of documents and information that the Parties deem to be confidential;
WHEREAS, this Protective Order is intended to allow the Parties to designate material
as confidential, and to limit the use and re-disclosure of those documents or that information;
NOW, THEREFORE, IT IS HEREBY ORDERED, as follows:
1.

As used herein, unless otherwise specified, the term “Producing Party” means the

party, or person other than a party, being asked to produce and asserting a confidentiality interest
in information or documents designated by that party or person as Confidential Material, as
defined in Paragraph 3 below.
2.

As used herein, unless otherwise specified, the term “Receiving Party” means the

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party receiving or requesting production of material designated by the Producing Party as
Confidential Material, including that party’s counsel.
3.

As used herein, "Confidential Material" shall mean the following documents, whether or

not embodied in any physical or electronic medium, and any and all information contained
within those documents: (i) any and all investigative or case files maintained by New York City
Administration for Children's Services ("ACS") in which Plaintiffs are the subject of a report of
child abuse or neglect; (ii) all documents containing personally identifying information, contact
information (including, without limitation, personal email addresses), employment history or
family history of any present or former employee of the Defendants (iii) personnel files
(including, without limitation, disciplinary records) of any present or former employee of the
Defendants; (iv) all documents deemed confidential by operation of state or federal law; (v) any
other documents or information that the Parties' counsel agree, in writing, should be treated as
confidential; or (vi) any other category of information given confidential status by this Court
after the date of this Order.
4.

A Producing Party may designate documents that it produces or discloses in this

action, or information contained within those documents, as "Confidential Materials" by marking
with the legend "CONFIDENTIAL" each page containing such information that it sends to the
Receiving Parties.
5.

No document or information shall be deemed "Confidential Material" subject to

the terms of this Stipulation and Order to the extent that it is (a) in the public domain or is
already available to the Receiving Party; (b) already lawfully in the possession of the Receiving
Party; (c) available or becomes available to a Receiving Party from a source other than the
Producing Party that is lawfully in possession of such information on a non-confidential basis; or

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(d) held by a court not to constitute Confidential Material.
6.

The inadvertent production of Confidential Material without appropriate

designation of confidentiality shall not be deemed a waiver of any claim of its status as
Confidential Material. Upon receiving reasonable notice from the Producing Party that the
produced Confidential Material has not been appropriately designated, all such information shall
be re-designated promptly as Confidential Material and treated accordingly. The Producing Party
shall immediately notify the Receiving Party of the error and provide replacement pages bearing
the “Confidential” legend. The Receiving Party shall not be in violation of this Protective Order
for any disclosures of such Confidential Material made prior to such notice, which would have
been permitted under the terms of this Protective Order but for the subsequent designation by
notice. Pursuant to Federal Rule of Evidence 502, the production of privileged or work-product
protected documents or communications, electronically stored information (“ESI”) or
information, whether inadvertent or otherwise, shall not constitute a waiver of the privilege or
protection from discovery in this case or in any other federal or state proceeding. This Order
shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence
502(d). If the Receiving Party disclosed such Confidential Material prior to being notified, the
Receiving Party will promptly inform the Producing Party of such disclosure, and the Receiving
Party will take steps to recover any disclosed Confidential Materials or provide for their
confidentiality pursuant to this Stipulation.
7.

Receiving Parties and their counsel shall not use any Confidential Material for

any purpose other than for the preparation or presentation of the Parties' case in this action, and
shall not produce or disclose Confidential Material to any third-party, except pursuant to the
terms of paragraph 6 below.

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8.

Unless otherwise ordered by the Court or agreed to by Parties' counsel in writing,

Confidential Material may be disclosed only to:
a.

The named parties;

b.

The Parties' counsel, persons acting under counsel's supervision, and

employees and independent contractors of counsel who are directly involved in the preparation
or presentation of the Parties' cases in this action;
c.

The Parties' experts and consultants, as necessary for the preparation or

presentation of the Parties' case in this action in accordance with the procedures set forth in
Paragraph 8 of this Protective Order;
d.

Any deponent, witness, or potential deponent or potential witness, for

purposes of investigation, preparation, deposition, or trial in this action only, who authored or
otherwise had access to and familiarity with the document or information at the time of its
original creation and use, or had familiarity with or possessed knowledge of facts and
circumstances of the action to which the document or information relates in accordance with the
procedures set forth in Paragraph 8 of this Protective Order;
e.

any other person as to whom the Parties agree in writing in accordance

with the procedures set forth in Paragraph 8 of this Protective Order;
f.

court reporters, as necessary for the conduct of this litigation; and

g.

the Court, pursuant to the provisions of Paragraph 10 of this Protective

Order.
9.

As used herein, disclosure of Confidential Material includes the written or oral

transmission of the document or information designated as Confidential Material.
10.

A Party's counsel may disclose Confidential Material, and/or the information

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contained therein, to a person identified in sub-paragraphs 8(c), 8(d), and/or 8(e) of this
Protective Order only after: (a) advising such person that, pursuant to this Protective Order, he or
she may not divulge Confidential Material to any other individual or entity; and (b) such person
executes a Non-Disclosure Agreement in the form annexed hereto as Exhibit A. A Party's
counsel shall retain each signed Non-Disclosure Agreement and provide a copy of each signed
Non-Disclosure Agreement to counsel for the disclosing Party upon request and before any
person to whom such Confidential Material is disclosed is permitted to testify (at deposition or
trial).
11.

Deposition testimony may be designated in good faith by any party as

Confidential Material by indicating on the record at the deposition that the specified part of the
testimony is Confidential Material subject to the provisions of this Protective Order. Those
portions of the transcript that includes such testimony, together with any exhibits consisting of
Confidential Material, shall be prominently marked "CONFIDENTIAL." In addition, those
portions of the transcript concerning any Confidential Material shall be deemed designated as
such upon written notice to the Parties' counsel, designating the page and line, within fifteen days
of receipt of the transcript. The Parties' counsel shall not disclose the deposition transcript before
expiration of said fifteen day period to any person who has not previously signed the form
attached as Exhibit A.
12.

If any Party seeks to file papers with the Court that incorporate Confidential

Material or reveal the contents thereof, that party shall make an application to the Court
consistent with the Court's rules for permission to file under seal, indicating whether any other
party objects to that request.
13.

The Receiving Party shall not be obligated to challenge the propriety of a

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Confidential Information designation at the time made and its failure to do so at the time shall
not operate as a waiver of tis right to request that the Court determine the propriety of the
designation at any subsequent time or in any way preclude a subsequent challenge to such
designation, except as provided in Paragraph 14 below.
14.

If a Receiving Party believes that the Producing Party has designated information

"Confidential" that is not entitled to such protection, the Receiving Party shall notify the
Producing Party of such disagreement in writing. The parties shall first try to dispose of such
disputes in good faith on an informal basis. If the dispute cannot be resolved within ten (10)
business days, the Receiving Party must seek within five (5) business days affirmative relief
from the Court overruling the Producing Party’s decision to designate the matter in question as
Confidential Material. Such application shall comply with the Individual Practices of the
assigned District Judge. The party challenging the confidentiality shall bear the burden of
demonstrating the propriety of the designation to the satisfaction of the Court. The Receiving
Party’s failure to seek relief from the Court within five (5) business days from the expiration of
the initial ten (10) business day informal discussion period shall constitute waiver of the asserted
challenge. If the Receiving Party seeks relief from the Court within five (5) business days as
described above, any disputed documents shall be treated as Confidential Material until the
parties resolve the dispute or the Court issues a ruling regarding the disputed confidentiality
designations.
15.

Except as provided herein, nothing in this Protective Order is intended to restrict,

limit, supersede, modify or amend any federal, state or local statute, ordinance or other law
limiting the disclosure of Confidential Material, or the applicability of the attorney/client
privilege or work product doctrine, or of any other privilege or doctrine that would exempt

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Confidential Material from disclosure.
16.

This Protective Order shall not be construed as a waiver by the parties of any

objection that might be raised as to the admissibility of any evidentiary material. This Order does
not preclude any person from opposing the production of any information on any proper ground
(including privilege grounds).
17.

Nothing in this Protective Order will prevent the Parties from producing any

Confidential Material in their 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 the Parties give written notice to the Producing Party's counsel 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 deem it appropriate to do so.
18.

Any party wishing to use Confidential Materials at any trial in connection with

this action shall inform the other party and either party shall be permitted to make an application
to the Court regarding the use of the materials and their confidential status. Except as provided
herein, nothing in this Protective Order is intended to restrict, limit, supersede, modify or amend
any federal, state or local statute, ordinance or regulation, or rule of the Court limiting the
disclosure of any document or information, or the applicability of the attorney/client privilege or
work product doctrine, or of any other privilege or doctrine that would exempt any document or
information from disclosure.
19.

This Protective Order shall be without prejudice to the right of the Producing

Party to oppose production of any document or information on any and all grounds other than

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confidentiality.
20.

Within 60 days after the termination of this case, including any appeals, any

Confidential Material received by a Receiving Party from a Producing Party, including all copies
thereof, , shall, at the election of the Receiving Party, be returned to counsel for the Producing
Party or destroyed, except that counsel for the Parties may retain one copy of any deposition
transcript and one final copy of all papers filed with the Court that contain or refer to
Confidential Material, which would otherwise be subject to the terms of this paragraph. Such
papers and deposition transcripts which may be retained in accordance with this paragraph shall
be conspicuously marked "Contains Confidential Material Subject to Protective Order." All
persons who have received or who have possessed Confidential Material pursuant to paragraph
6(a)-(e) shall verify the return or destruction of those Confidential Materials (with the exception
set forth in the previous sentence in this paragraph) by affidavit furnished to counsel for the
disclosing Party.
21.

Nothing in this Stipulated Protective Order shall be construed to limit the

Producing Parties' use of Confidential Material in any manner.
22.

The Parties reserve the right to individually seek modification of this Protective

Order by application to the Court for good cause shown.
23.

Electronic or faxed copies of signatures of this Protective Order shall have the

same force and effect as original signatures.
Dated: New York, New York
January 3, 2022
OFFICE OF THE
CORPORATION COUNSEL

Kaufman, Lieb, Lebowitz & Frick,
LLP

By: _________________________

By:_/s/ Alyssa D. Isidoridy

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Brian Krist

Alyssa D. Isidoridy

GEORGIA PESTANA
Corporation Counsel of the
City of New York
Attorney for Defendants
100 Church Street, 2nd Floor
New York, New York 10007
[phone]

Attorneys for Plaintiffs
10 East 40th Street, Ste. 3307
New York, New York 10016
[phone]

SO ORDERED:
January 10, 2022
Dated: ______________________
New York, New York

___________________________________
Naomi Reice Buchwald
U. S. D. J.

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EXHIBIT A

I, ________________________________, the undersigned, hereby swear under penalty of
perjury that I have read the Stipulated Protective Order (the ”Order”) entered in the United States
District Court for the Southern District of New York dated January 3, 2022, in the action titled
Smart, et al. v. Scott, et al., 21-cv-3420 (NRB) and understand the terms thereof. I agree not to
use the Confidential Material defined therein for any purpose other than in connection with the
prosecution or defense of that case, and will not further disclose the Confidential Material except
in testimony taken in that case. I aver that the Confidential Material and any copies, notes, or
other records that I make regarding the Confidential Material shall not be used or disclosed by
me or my agents to others. I agree to be subject to the above-identified Court’s rulings regarding
the imposition of appropriate sanctions, and I agree that I may be held in contempt of court if I
violate the terms of the Order.

Dated:_______________________

_________________________________
Signature

_________________________________
Name (Printed)

________________________________
Occupation