Farah et al v. Emirates et al

Filing 72

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Magistrate Judge Sarah Netburn on 6/4/2024) (dsh)

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”
pursuant to this Order, no person subject to this Order may disclose such Confidential Discovery
Material to anyone else except as this Order expressly permits:
2.

The Party or person producing or disclosing Discovery Material (“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 non-

public 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,

including, but not limited, personal medical information; or
(e)

any other category of information this Court subsequently affords confidential

3.

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

status.

deposition transcripts and exhibits, the Producing Party or its counsel may designate such portion
as “Confidential” by: (a) stamping or otherwise clearly marking as “Confidential” 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.

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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 21 days after a deposition has concluded, of the specific pages
and lines of the transcript that are to be designated “Confidential,” 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 21-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 trial of this action a Producing Party realizes that it should

have designated as Confidential some portion(s) of Discovery Material that it previously produced
without limitation, the Producing Party may so designate such material by so apprising all prior
recipients in writing, and by re-producing the Discovery Materials in compliance with paragraph
3 above. Thereafter, this Court and all persons subject to this Order will treat such designated
portion(s) of the Discovery Material as Confidential.
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;

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(b)

counsel retained specifically for this action, including any paralegal, clerical, or

other assistant that such outside counsel employs and assigns to this matter;
(c)

outside vendors or service providers (such as copy-service providers and document-

management consultants) that counsel hire and assign to this matter, provided they are advised to
maintain the Confidential Discovery Material in a protected and secure manner;
(d)

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 an Exhibit A hereto;
(e)

as to any document, its author, its addressee, and any other person indicated on the

face of the document as having received a copy;
(f)

any witness who is called to testify at trial or deposition in this action, provided

such person has first executed a Non-Disclosure Agreement in the form annexed as an Exhibit
hereto;
(g)

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 an Exhibit hereto;
(h)

stenographers engaged to transcribe depositions the Parties conduct in this action;

(i)

this Court, including any appellate court, its support personnel, and court reporters.

8.

Before disclosing any Confidential Discovery Material to any person referred to in

and

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 an Exhibit hereto stating that
he or she has read this Order and agrees to be bound by its terms. Said counsel must retain each

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signed Non-Disclosure Agreement 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.

In accordance with Rule 5 of this Court’s Individual Practices, any party filing

documents under seal must simultaneously file with the Court a letter brief stating who marked
the Discovery Material as Confidential. If the party filing the documents under seal is the
Producing Party, that party must also submit a supporting declaration justifying – on a
particularized basis – the continued sealing of such documents. If the party filing the Discovery
Material under seal is not the Producing Party, the Producing Party shall submit a supporting
declaration justifying – on a particularized basis – the continued sealing of such documents within
seven days. The Producing Party retains the burden of demonstrating that the Discovery Material
should remain under seal. 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).
10.

The Court also retains discretion whether to afford confidential treatment to any

Discovery Material designated as Confidential and submitted to the Court in connection with any
motion, application, or proceeding that may result in an order and/or decision by the Court. 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 has previously been sealed or designated as Confidential.
11.

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. 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.
12.

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. However, by not doing so, a Party does not waive any
such objection and is not precluded from raising said objection at a later time in the litigation. If
the Parties cannot reach agreement promptly, counsel for all affected Parties will address their
dispute to this Court in accordance with paragraph 4(D) of this Court’s Individual Practices.
Notwithstanding the preceding sentences, at all times it remains the Producing Party’s burden to
demonstrate the appropriateness of any confidentiality designation.
13.

Any Party who requests additional limits on disclosure (such as “attorneys’ eyes

only” in extraordinary circumstances), may at any time before the trial of this action serve upon
counsel for the recipient Parties a written notice stating with particularity the grounds of the
request. If the Parties cannot reach agreement promptly, counsel for all affected Parties will address
their dispute to this Court in accordance with paragraph 4(D) of this Court’s Individual Practices.
14.

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 business, commercial, or competitive 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.

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15.

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

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.
16.

Each person who has access to Discovery Material designated as Confidential

pursuant to this Order must take all due precautions to prevent the unauthorized or inadvertent
disclosure of such material.
17.

If, in connection with this litigation, a party inadvertently discloses information

subject to a claim of attorney-client privilege or attorney work product protection (“Inadvertently
Disclosed Information”), such disclosure 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.
18.

If a disclosing party makes a claim of inadvertent disclosure, the receiving party

shall, within five 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.
19.

Within five business days of the notification that such Inadvertently Disclosed

Information has been returned or destroyed, the disclosing party shall produce a privilege log with
respect to the Inadvertently Disclosed Information.

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20.

The receiving party may move the Court for an Order compelling production of the

Inadvertently Disclosed Information. The motion shall be filed under seal, and shall not assert as
a ground for entering such an Order the fact or circumstances of the inadvertent production.
21.

The disclosing party 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.
22.

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, except to the extent that documents must be preserved pursuant to
applicable law. 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, working files 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.
23.

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

binding upon all persons to whom Confidential Discovery Material is produced or disclosed.

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