W.P.V. et al v. Cayuga Home for Children, Inc. et al
Filing
42
PRIVACY ACT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... So Ordered. (Signed by Judge John P. Cronan on 11/17/2021) (js)
Case 1:21-cv-04436-JPC Document 42 Filed 11/17/21 Page 1 of 9
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
W.P.V. & W.P.O.,
Plaintiffs,
21 Civ. 4436 (JPC)
-vUNITED STATES OF AMERICA and CAYUGA
HOME FOR CHILDREN,
Defendants.
[PROPOSED] PRIVACY ACT AND PROTECTIVE ORDER
WHEREAS, Plaintiffs W.P.V. and W.P.O. (“Plaintiffs”) brought this action against
Defendants the United States of America (“United States” or the “Government”) and Cayuga
Home for Children (“Cayuga”) (collectively “Defendants”);
WHEREAS, certain records Plaintiffs seek in connection with the allegations in the
Complaint contain information concerning various third parties which may be protected by the
Privacy Act of 1974, 5 U.S.C. § 552a (the “Privacy Act”);
WHEREAS, certain records Plaintiffs seek in connection with the allegations in the
Complaint contain sensitive information about the Government’s law enforcement or national
security staffing, resources, intelligence and/or methods (including the names and contact
information of third parties, and non-supervisory federal and non-federal employees), and the
release of which to the public may adversely impact identifiable law enforcement or national
security interests;
WHEREAS, pursuant to the provisions of Rule 26(c) of the Federal Rules of Civil
Procedure, the Court enters this Privacy Act Order and Protective Order, upon the joint request
of the parties, for the purposes of facilitating the disclosure of information that otherwise would
Case 1:21-cv-04436-JPC Document 42 Filed 11/17/21 Page 2 of 9
be prohibited from disclosure under the Privacy Act, and assuring the confidentiality of
information that may be disclosed by the parties or by any non-party agencies, departments, or
offices of the United States in the course of discovery proceedings. The Court, having found that
good cause exists for entry of this Privacy Act Order and Protective Order, HEREBY ORDERS:
1.
Pursuant to 5 U.S.C. § 552a(b)(11), this Order authorizes Defendants to produce
information that otherwise would be prohibited from disclosure under the Privacy Act without
presenting Privacy Act objections to this Court for a decision regarding disclosure. To the extent
the Privacy Act allows the disclosure of information pursuant to a court order, this Order
constitutes such a court order and authorizes the disclosure of that information. Nothing in this
paragraph, however, shall require production of information that is prohibited from disclosure
(even with the entry of this Order) by other applicable privileges, statutes, regulations, or
authorities. The terms of this Order shall govern the safeguarding of such information by all
individuals referenced herein.
2.
As used in this Order, the term “Protected Information” constitutes any and all
documents or records, and information contained therein, that contain any confidential,
proprietary, personal, or similar information, including but not limited to privileged law
enforcement information and information protected from disclosure by the Privacy Act.
3.
Information that Plaintiffs or Defendants deem Protected Information shall be
designated as such by stamping the phrase “Subject to Protective Order” on any document or
record containing Protected Information prior to the production of such document or record.
4.
Any party who contests the designation of a document or record as Protected
Information shall provide the producing party written notice of its challenge. If the parties
cannot resolve this dispute, they shall follow the Federal Rules of Civil Procedure, the Local
Case 1:21-cv-04436-JPC Document 42 Filed 11/17/21 Page 3 of 9
Civil Rules for the United States District Courts for the Southern and Eastern Districts of New
York, the individual practices of the Court, and/or any court orders for addressing discovery
disputes. Failure to challenge a designation immediately does not waive a party’s ability to bring
a later challenge.
5.
Except as provided in this Order, all Protected Information produced or
exchanged pursuant to this Order shall be used solely for the purposes of this action and for no
other purpose whatsoever, and shall not be published to the general public in any form, or
otherwise disclosed, disseminated, or transmitted to any person, entity, or organization, except in
accordance with the terms of this Order.
6.
Any document or record designated as Protected Information may be disclosed
only to the following Qualified Persons to the extent the witnesses’ testimony may relate to
documents designated as Protected Information:
i.
Defendants, attorneys for the Defendants, and any support staff or other
employees of Defendants or attorneys of record of Defendants who are assisting in the defense of
this action;
ii.
Plaintiffs, attorneys for Plaintiffs, and any support staff or other employees
of Plaintiffs or attorneys of record of Plaintiffs who are assisting in the maintenance of this
action;
iii.
Witnesses who are deposed in this action, to the extent the witnesses’
testimony may relate to documents designated as Protected Information;
iv.
Experts or consultants retained for this action by counsel to a party, and
any support staff or other employees for such experts or consultants who are assisting in the
expert’s work for this action;
Case 1:21-cv-04436-JPC Document 42 Filed 11/17/21 Page 4 of 9
v.
Court reporters or stenographers engaged to record deposition testimony,
and their employees who are assisting in the preparation of transcripts of such deposition
testimony;
vi.
The Court and Court personnel; and
vii.
Such other persons as hereafter may be authorized by the Court upon
motion of any party.
7.
A copy of this Order shall be delivered to each Qualified Person to whom a
disclosure of Protected Information is made, at or before the time of disclosure, by the party
making the disclosure or by its counsel. The provisions of this Order shall be binding upon each
such person to whom disclosure is made.
8.
All Qualified Persons, including the parties and their respective counsel, to whom
Protected Information is disclosed, are hereby prohibited from disclosing information designated
as Protected Information to any unauthorized person, except as provided in this Order.
9.
Any deposition questions intended to elicit testimony regarding Protected
Information shall be conducted only in the presence of persons authorized to review the
Protected Information. Any portions of deposition transcripts containing such questions and
testimony shall be automatically subject to the same protections and precautions as the Protected
Information.
10.
If any party seeks to publicly file with the Court any Protected Information, or
portions of pleadings, motions, or other papers that disclose such Protected Information, that
party shall provide the producing person no less than ten days’ advance written notice of its
intent to file such material. The producing party may then make an application to the Court
requesting that the material be filed and kept under seal. If such an application is made, the
Case 1:21-cv-04436-JPC Document 42 Filed 11/17/21 Page 5 of 9
papers in question shall not be filed until the Court renders a decision on that application. The
parties will use their best efforts to minimize the need to file documents under seal.
11.
Nothing in this Order shall preclude any disclosure of Protected Information to
any judge, magistrate, or employee of the Court for purposes of this action.
12.
Nothing contained in this Order shall be construed to prejudice any party’s right
to use in open court any Protected Information, provided that reasonable notice of the potential
disclosure of the Protected Information shall be given to the producing party so that the
producing party may move to seal the document, or otherwise seek to prevent the disclosure or
dissemination of the Protected Information, in advance of its use in open court.
13.
If counsel for any party is required by law or court order to disclose, disseminate,
or transmit Protected Information produced under this Order to any person or entity not
identified herein as a Qualified Person, the name of that person or entity and the reason access is
required shall be provided to the producing party no less than 14 days prior to disclosure,
dissemination, or transmittal so as to provide the producing party sufficient time to object and
seek a protective order as necessary. There shall be no disclosure after an objection has been
made until the objection has been resolved unless disclosure, dissemination, or transmission is
required sooner by law or court order. If Protected Information produced under this Order is
required by law or court order to be disclosed to a person or entity not identified herein as a
Qualified Person, the person or entity receiving the Protected Information shall, before receiving
the Protected Information, be provided with a copy of this Order and shall acknowledge their
agreement to comply with this Order by signing a copy of the attached acknowledgement form.
A copy of each such acknowledgement form must be provided promptly after its execution to
counsel of record for the producing party.
Case 1:21-cv-04436-JPC Document 42 Filed 11/17/21 Page 6 of 9
14.
Within thirty days after the final disposition of this action, including any and all
appeals, all Protected Information and copies thereof in the possession of any Qualified Persons,
other than counsel for the parties, shall be returned to the producing parties or destroyed. If the
Protected Information is destroyed, the party that has destroyed the Protected Information shall
certify in writing to the producing party that the Protected Information in its possession has been
destroyed.
15.
If Plaintiffs or Defendants inadvertently fail to designate material as Protected
Information at the time of production, this shall not in itself be deemed a waiver of any claim of
confidentiality as to that Protected Information. The producing party may correct its failure to
designate an item as Protected Information by taking reasonable steps to notify all receiving
persons of its failure, and by promptly supplying all receiving persons with new copies of any
documents bearing corrected designations. Within five business days of receiving copies of any
documents bearing corrected designations pursuant to this paragraph, the receiving persons shall
return or destroy the improperly designated materials, and certify in writing to the producing
party that such materials have been returned or destroyed.
16.
This Order does not constitute any ruling on the question of whether any
particular document or category of information is properly discoverable, and does not constitute
any ruling on any potential objection to the discoverability, relevance, or admissibility of any
document or information.
17.
Nothing in this Order shall be construed as a waiver of any defense, right,
objection, or claim by any party, including any objection to the production of documents and any
claim of privilege or other protection from disclosure.
Case 1:21-cv-04436-JPC Document 42 Filed 11/17/21 Page 7 of 9
18.
Nothing in this Order shall affect the right of any party to seek additional
protection against the disclosure of any documents or materials, or of the parties to seek
additional disclosures.
19.
Nothing in this Order shall prevent the disclosure of Protected Information to
governmental authorities for purposes of enforcement of criminal laws or in furtherance of civil
enforcement or regulatory proceedings.
20.
Nothing in this Order shall prevent any disclosure of Protected Information by the
party or entity that designated the information as such.
The parties shall comply with Rule 4 of the Court's Individual Rules and Practices in Civil Cases
when seeking to file any document under seal.
Case 1:21-cv-04436-JPC Document 42 Filed 11/17/21 Page 8 of 9
SO STIPULATED AND AGREED TO BY:
Dated: November 17, 2021
New York, New York
Dated: November 17, 2021
New York, New York
DAMIAN WILLIAMS
United States Attorney for the
Southern District of New York
By:
/s/ Aamir A. Kazi____
.
Aamir A. Kazi (pro hac vice)
GA Bar. No. 104235
Karan Jhurani (pro hac vice)
GA Bar No. 290326
Fish & Richardson P.C.
1180 Peachtree Street NE
21st Floor
Atlanta, GA 30309
Telephone: 404-892-5005
Fax: 404-892-5002
E-mail: kazi@fr.com
Counsel for Plaintiffs
By:
/s/ Alexander J. Hogan
.
ALEXANDER J. HOGAN
REBECCA R. FRIEDMAN
Assistant United States Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel.: (212) 637-2799/2614
E-mail: alexander.hogan@usdoj.gov
rebecca.friedman@usdoj.gov
Counsel for United States
Dated: November 16, 2021
White Plains, New York
COFFEY MODICA O’MEARA, LLP
By: __________________________
Sherri A. Jayson, Esq.
200 E. Post Rd. Suite 210
White Plains, NY 10601
Tel. (212) 827-4501
Email: sjayson@cmollp.com
SO ORDERED:
____________________________
HON. JOHN P. CRONAN
Date: November 17, 2021
New York, New York
Case 1:21-cv-04436-JPC Document 42 Filed 11/17/21 Page 9 of 9
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
W.P.V. & W.P.O.,
Plaintiffs,
21 Civ. 4436 (JPC)
-vUNITED STATES OF AMERICA and CAYUGA
HOME FOR CHILDREN,
Defendants.
ACKNOWLEDGEMENT
I have read and I understand the Privacy Act and Protective Order entered by the Court in
the case W.P.V., et al. v. United States, et al., Case No. 21 Civ. 4436 (JPC), and I agree to be
bound by its terms.
Date:
___________________________
Name (printed):
___________________________
Signature:
__________________________
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