Emile et al v. Ethical Culture Fieldston School et al
Filing
23
STIPULATION OF CONFIDENTIALITY AND PROTECTIVE ORDER:...regarding procedures to be followed that shall govern the handling of confidential material...So Ordered. (Signed by Judge J. Paul Oetken on 9/7/2021) (js)
Case 1:21-cv-03799-JPO Document 23 Filed 09/07/21 Page 1 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KIM EMILE, ARIELLE EMILE, and A.C.E., a
minor child,
Plaintiffs,
Case No. 21-cv-03799-JPO
v.
ETHICAL CULTURE FIELDSTON SCHOOL,
JESSICA L. BAGBY, NIGEL FURLONGE,
CARL ANHALT, and “JOHN AND JANE
DOES,” said names being fictitious and intended
to represent individual employees, staff, teachers,
and personnel of Ethical Culture Fieldston School,
Defendants.
STIPULATION OF CONFIDENTIALITY AND PROTECTIVE ORDER
IT IS HEREBY STIPULATED AND AGREED by and between the undersigned
counsel for Plaintiffs KIM EMILE, ARIELLE EMILE, and A.C.E. (collectively, “Plaintiffs”)
and Defendants ETHICAL CULTURE FIELDSTON SCHOOL (“ECFS”), JESSICA L.
BAGBY, NIGEL FURLONGE, CARL ANHALT, and “JOHN AND JANE DOES”
(collectively, “Defendants”) (Plaintiffs and Defendants, singularly, a “Party”, and collectively,
the “Parties”), that:
1.
All documents, materials, items, and/or information produced by a Party or Non-
Party (a “Producing Party”) to any of the Parties in this case (a “Receiving Party”) shall be
governed by this Protective Order.
Case 1:21-cv-03799-JPO Document 23 Filed 09/07/21 Page 2 of 10
2. A Producing Party may designate any information or materials it produces in this
action as (1) “Confidential” or (2) “Highly Confidential – Attorneys’ Eyes Only” under the terms
of this Protective Order (collectively referred to herein as “Protected Information”).
3. For the purposes of information or materials produced during the course of litigation,
information or materials designated “Confidential Information” means those things that may be
disclosed to the Parties for the purposes of this action, but which should be protected against
disclosure to third parties. This includes, but is not limited to, information or materials a
Producing Party reasonably and in good faith believes contain or disclose information that the
Producing Party, in the ordinary course, does not or would not publicly disclose, or which would,
in the good faith judgment of the Producing Party, be detrimental to that Producing Party.
4. For the purposes of discovery produced during the course of litigation, information or
materials designated “Highly Confidential – Attorneys’ Eyes Only” means those things that the
Producing Party in good faith believes are so sensitive that their disclosure to any person other
than those specified in Paragraph 6(c) is likely to cause significant harm to an individual, or
constitutes or is similar to information subject by law or contract to a legally protected right of
privacy or that the Producing Party is otherwise under a preexisting obligation to maintain as
confidential. Non-limiting examples of such information or materials include:
(a)
Protected Health Information (“PHI”), as that term is used in the Health
Insurance Portability and Accountability Act (“HIPAA”) and defined in 45 C.F.R.
§§ 160 and 164. PHI includes, but is not limited to, health information, including
demographic information, relating to either: the past, present, or future physical or
mental condition of an individual; the provision of care to an individual; and the
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payment for care provided to an individual that identifies the individual or which
reasonably could be expected to identify the individual.
(b)
Non-public information or materials regarding individuals, such as home
addresses, social security numbers, dates of birth, financial records, educational
records, disciplinary records, school attendance records, reports to child
protection agencies, signed agreements and/or contracts, personnel records,
employment records, payroll information, demographic data, and names of
minors; and
(c)
Any other non-public information or materials naming or concerning
ECFS families and students other than Plaintiffs.
5. Any information is deemed Protected Information if designated “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by the Producing Party,
whether it is a document, information contained in a document, information revealed in an
interrogatory answer, information revealed during deposition, and/or information revealed during
a court proceeding or otherwise. The protections conferred by this Protective Order also cover
any information copied or extracted from Protected Information; all copies, excerpts, summaries,
or compilations of Protected Information; and any testimony, conversations, or presentations by
Parties or their counsel that reveals Protected Information. This Protective Order pertains to all
documents and materials provided by the Parties in connection with this litigation, even if the
documents or materials are not specifically requested by a discovery request.
6. All Protected Information shall be subjected to the following restrictions:
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(a)
All such Protected Information shall be used only for the purpose of
prosecuting or defending this litigation and any related appeals and not for any
other purpose whatsoever;
(b)
All information and materials designated as “Confidential” shall not be
given, shown, made available, discussed or otherwise communicated in any way
to anyone except:
i.
The Court and its employees;
ii.
Court reporters;
iii.
Attorneys of record, their associated attorneys, and the
employees of such attorneys to whom it is necessary that
the material be shown for the purpose of this litigation;
iv.
Deponents at depositions;
v.
Mediators and their employees;
vi.
Experts;
vii.
Professional vendors providing litigation support services,
to whom it is necessary that the material be shown for the
purpose of this litigation;
viii.
The Parties, or the directors, officers and employees of the
Parties who are assisting in the preparation of this case for
trial and to whom, in the opinion of the attorney(s) for
Plaintiffs or Defendants, it is necessary to the preparation
of the Party’s case that such material be shown; and
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ix.
Any other person only upon order of the Court or by
written consent of the Producing Party.
(c)
Information or material designated as “Highly Confidential – Attorneys’
Eyes Only,” or copies or extracts therefrom and compilations and
summaries thereof, may be disclosed, summarized, described,
characterized, or otherwise communicated or made available in whole or
in part only to the persons identified in Paragraph 6(b)(i)–(vii) and (ix).
(d)
Nothing in this Protective Order shall limit a Party’s use or disclosure of
its own information.
7. The persons referred to in Paragraphs 6(b)–(c) to whom documents and copies of
Protected Information are to be provided, discussed, made available, or otherwise communicated
in any way, in whole or part, shall be told about the Protective Order and advised not to disclose
such documents and/or information outside the context of this litigation. All persons listed in
Paragraphs 6(b)(vi)–(ix) may only receive access to Protected Information after they have
confirmed their understanding and agreement to abide by the terms of this Protective Order by
completing and signing a copy of an undertaking in the form attached hereto as Exhibit A.
8.
Any Producing Party who inadvertently fails to designate Protected Information
or otherwise wishes to change the designation of confidentiality under this Protective Order, may
later attempt to do so, after making a good faith attempt to resolve the issue with the receiving
party, by making such request to the Court detailing the nature of the designation change and
setting forth the reasons why the Information was not properly designated from the outset. In the
event that the classification change is one from unprotected to protected, the moving party is
required to meet the standard of proof set forth in Second Circuit Case Law. If successful, then
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the party who received the information will be required to follow the ruling of the Court. The
provisions of this paragraph shall not apply to any disclosure when the material disclosed has
been relied upon by the Producing Party during trial, hearing, or in support of any position taken
before the Court, other than in a sealed proceeding.
9.
At any time during the period of this action, any Party who objects to the
designation of any Confidential Information will advise the Producing Party in writing of its
objection and the basis of the objection. If the Parties are unable to resolve the objection in good
faith, the objecting Party shall move for an order vacating the confidential designation. While
such an application is pending, the at issue Information will be treated as confidential under the
terms of this Stipulation. The Parties are not obligated to challenge the designation of any
Protected Information at the time of receipt, disclosure, or designation, and are not precluded
from raising any subsequent challenges.
10.
At the conclusion of this action, including all appeals, all persons having received
Protected Information hereunder, except the Court and those employed by the Court, shall return
such material and all copies thereof (including summaries and excerpts) to counsel for the
Producing Party or, alternatively, shall destroy such material and provide written certification of
such destruction to counsel for the Producing Party, with the exception of documents retained for
recordkeeping purposes by counsel for the Parties. Counsel for the Parties are not required to
destroy and/or return Attorney Work Product. Notwithstanding the foregoing, all PHI that is
subject to the provisions of HIPAA, including all copies made, shall be returned to the covered
entity that provided it, as defined under 45 C.F.R. § 160.103, or destroyed within 90 days of the
conclusion of this litigation, either through the settlement of the case, the dismissal of the case or
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the entry of a final order (i.e., an order not subject to further appeal), as required by 45 C.F.R
§ 164.512(e)(1)(v)(B).
11.
Unless otherwise agreed or ordered, all provisions of this Order will remain in
effect and continue to be binding after conclusion of the litigation.
12.
Entering into, agreeing to, and/or producing or receiving Protected Information or
otherwise complying with the terms of this Protective Order shall not:
(a)
operate as an admission by any Party that any Protected Information
contains or reflects any sensitive or confidential information;
(b)
operate as an admission by any Party that the restrictions and procedures
set forth herein constitute or do not constitute adequate protection for any
particular Protected Information;
(c)
prejudice in any way the rights of the Parties to object to the production of
documents they consider not subject to discovery;
(d)
prejudice in any way the rights of any Party to object to the authenticity or
admissibility into evidence of any document, testimony, or other evidence subject
to this Protective Order;
(e)
prejudice in any way the rights of a Party to seek a determination by the
Court whether any information or material should be subject to the terms of this
Protective Order;
(f)
prejudice in any way the rights of a Party to petition the Court for a further
protective order relating to any purportedly confidential information or persons to
whom such information may be disclosed;
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(g)
prejudice in any way the rights of a Party to make a showing that
information or material of a sensitive or confidential nature, but which is not
specifically included in the categories of “Highly Confidential – Attorneys’ Eyes
Only” information or materials itemized in Paragraph 4 above, is properly
designated “Highly Confidential – Attorneys’ Eyes Only”; or
(h)
prevent the Parties to this Protective Order from agreeing in writing or on
the record during a deposition or hearing in this action to alter or waive the
provisions or protections provided for herein with respect to any particular
information or material produced by the Parties.
13.
Nothing in this Stipulation shall bar or otherwise restrict an attorney from
rendering advice with respect to this litigation to the Party for which such attorneys have
appeared of record in this action and, in the course thereof, referring to or relying generally upon
their examination of documents produced to them in this action.
14.
This Stipulation supersedes any previous arrangement for confidentiality entered
into by the Parties.
15.
This Stipulation may be changed by further written agreement of the Parties, and
is without prejudice to the rights of a Party to move for relief from any of its provisions, or to
seek or agree to different or additional protection for any particular material or information.
I hereby consent to the form and entry of the within Confidentiality Stipulation.
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Case 1:21-cv-03799-JPO Document 23 Filed 09/07/21 Page 9 of 10
THE COCHRAN FIRM
WILMER CUTLER PICKERING
HALE AND DORR LLP
By: /s/ Derek S. Sells (e-signed with consent)
Derek S. Sells
55 Broadway, 23rd Floor
New York, New York 10006
Phone: (212) 553-9215
dsells@cochranfirm.com
By: /s/ Debo P. Adegbile
Debo P. Adegbile
Alan E. Schoenfeld
Alyson Zureick
7 World Trade Center
250 Greenwich Street
New York, New York 10007
Phone: (212) 295-6717
debo.adegbile@wilmerhale.com
alan.schoenfeld@wilmerhale.com
alyson.zureick@wilmerhale.com
Attorney for Plaintiffs Kim Emile,
Arielle Emile, and A.C.E.
Ruth E. Vinson (pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Avenue NW
Washington, DC 20006
Tel: (202) 663-6073
Fax: (202) 663-6363
ruth.vinson@wilmerhale.com
Attorneys for Defendants Ethical
Culture Fieldston School, Jessica L.
Bagby, Nigel Furlonge, and Carl
Anhalt
Dated: New York, New York
September 3, 2021
SO ORDERED:
___________________________
Hon. J. Paul Oetken
United States District Judge
September 7, 2021
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EXHIBIT A
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, the undersigned,
(print or type name),
hereby acknowledge that I have received a copy of the Stipulated Protective Order (the “Order”)
entered on
, 2021 in the matter entitled “Kim Emile, Arielle Emile, and A.C.E.
v. Ethical Culture Fieldston School, Jessica L. Bagby, Nigel Furlonge, Carl Anhalt, and “John
and Jane Does””, Case No. 21-cv-03799-JPO, pending before the Honorable J. Paul Oetken in
the U.S. District Court for the Southern District of New York. My business/residence address is:
I hereby acknowledge that I have read and understand the Order, and agree to: (1) be
bound by all of the provisions thereof and (2) submit to the jurisdiction of the U.S. District Court
for the Southern District of New York for purposes of enforcing the Order.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct, and that this Agreement was executed on the _____ day of
__________, 202_, in the city of ________________, state of _______.
(Signature)
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