Trustees of the New York Hotel Trades Council and Hotel Association of New York City, Inc. Pension Fund v. RHC Operating, LLC et al

Filing 98

STIPULATED AND ORDER REGARDING CONFIDENTIALITY AND THE PRODUCTION AND EXCHANGE OF ELECTRONICALLY STORED INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material... The parties are advised that the Court retains discretion as to whether to afford confidential treatment to redacted information in Orders and Opinions. So Ordered. (Signed by Judge Lorna G. Schofield on 11/17/2022) (mml)

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 1 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------x
:
TRUSTEES of the NEW YORK HOTEL
:
TRADES COUNCIL AND HOTEL
:
ASSOCIATION OF NEW YORK CITY, INC.
:
PENSION FUND,
:
:
:
Plaintiffs,
:
:
- against :
RHC OPERATING, LLC, ROOSEVELT
:
HOTEL CORPORATION, N.V., PIA
:
INVESTMENTS LIMITED, PAKISTAN
:
INTERNATIONAL AIRLINES
:
CORPORATION LIMITED,
:
:
Defendants.
:
------------------------------------------------------------------x

Civil Action No. 1:21-cv-09538 (LGS)
____________
STIPULATED AND [PROPOSED]
ORDER REGARDING
CONFIDENTIALITY AND THE
PRODUCTION AND EXCHANGE OF
ELECTRONICALLY STORED
INFORMATION

IT IS HEREBY STIPULATED AND AGREED, by and among the parties hereto
(collectively, the “Parties” and individually a “Party”), through their undersigned counsel, that the
_________ Order Regarding Confidentiality and the
following provisions of this Stipulated and [Proposed]
Production and Exchange of Electronically Stored Information (the “Order”) shall govern
disclosure and use by the Parties of all documents and any other materials and information
disclosed or provided in the above referenced action:
1.

Cooperation. The Parties commit to cooperating in good faith throughout this

matter, consistent with this Court’s Local Rules and Judge Schofield’s Individual Rules and
Procedures for Civil Cases (“Judge Schofield’s Individual Rules”).
2.

Scope. All documents, e-mails, and other electronically stored information

materials produced in the course of discovery in the above-captioned matter (hereinafter
collectively “documents”), shall be subject to this Order.

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 2 of 14

3.

Confidential Information. As used in this Order, “Confidential Information”

means documents or information designated as “CONFIDENTIAL” by the producing party that
falls within one or more of the following categories: (a) information prohibited from disclosure
by statute or the Federal Rules of Civil Procedure and any applicable local rules; (b) information
that reveals trade secrets; (c) proprietary, research, technical, business, customer or client
information, vendor and supplier information, competitively sensitive information, or
commercial or financial information that the party has maintained as confidential; (d) previously
non-publicly disclosed business information, business plans and proposals, product development
information, or marketing plans; (e) personal information; (f) personnel or employment records;
(g) organizing and employee representational or associational information; (h) information
privileged under the Labor Management Relations Act or the First Amendment to the U.S.
Constitution; or (i) information protected by the Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”). Information or documents that are available to the public may not be
designated as Confidential Information. Information or documents which were produced prior
to the date on which the Parties agreed to be bound to this Order may also be designated as
Confidential Information subject to all the restrictions and obligations set forth herein; provided,
however, that any disclosure of Confidential Information that may have occurred prior to the date
on which the Parties agreed to be bound hereto shall not be deemed to violate this Order.
4.

Definitions.
(a)

Person. The term “person” shall mean any natural person or any legal

entity, including, without limitation, any business or governmental entity or
association.
(b)

Receiving Person. The term “receiving person” shall mean any party to

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 3 of 14

whom Confidential Information, whether oral or in documentary or other tangible
form, is disclosed in this case.
(c)

Producing Party. The term “producing party” shall mean the party that

discloses Confidential Information in this case.
(d)

Document. The term “document” shall be synonymous in meaning and

equal in scope to the usage of the term “documents or electronically stored
information” in Fed. R. Civ. P. 34(a)(1)(A). A draft or non-identical copy is a
separate document within the meaning of this term.
5.

Designation. A party may designate a document as Confidential Information for

protection under this Order by placing or affixing the words “CONFIDENTIAL” on the
document and on all copies in a manner that will not interfere with the legibility of the document.
As used in this Order, “copies” includes electronic images, duplicates, extracts, summaries or
descriptions that contain the Confidential Information. The marking “CONFIDENTIAL” shall
be applied prior to or at the time that the documents are produced or disclosed. Applying the
marking “CONFIDENTIAL” to a document does not mean that the document has any status or
protection by statute or otherwise except to the extent and for the purposes of this Order.
Furthermore, the Parties acknowledge that this Court retains discretion as to whether, in Orders
and Opinions, to afford confidential treatment to information that the parties have redacted, sealed
or designated as Confidential.
Testimony given at a deposition upon oral examination or a hearing or portions
thereof, may be designated as confidential by an appropriate statement on the record at the time
such testimony is offered or upon subsequent review and notification to counsel within fifteen
(15) days of receipt by either party of the transcript of such testimony. Unless otherwise agreed

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 4 of 14

on the record at a deposition, all deposition transcripts and videotapes in their entirety shall be
considered and treated as Confidential Information until the expiration of the aforesaid fifteen
(15) day period following receipt of the transcript by the parties.
6.

Technical Specifications and Protocol for Production of ESI
(a)

Purpose. This Order will also govern the discovery of electronically stored

information (“ESI”) in this case as a supplement to the Federal Rules of Civil Procedure, this
Court’s Local Rules, Judge Schofield’s Individual Rules, and any other applicable orders and
rules. The parties can agree in writing to modify the terms of paragraphs 6(b)-(i) without further
order of the Court.
(b)

Format. With the exception of unimageable files, media files (such as

audio and/or video files), Excel Files, and/or PowerPoint files, the Parties shall produce each
electronic document: (a) as a Bates-stamped 300 dots per inch (dpi), single-page Group IV TIFF
image or, if in color, as a .jpg file, named to match the unique Bates Number assigned to the
first page of the document in question, followed by the appropriate extension “TIF” or “JPG”
(multi-page tif files are not acceptable); (b) with an Opticon cross-reference file that enables
the document to be uploaded and viewed using standard litigation support software Relativity;
(c) with Metadata in a standard delimited file; (d) with family and/or group identifiers that
enable the linking of family members and attachments to the parent file; and (e) with extracted
text and/or Optical Character Recognition (“OCR”) as a separate .txt file for each document
named according to the beginning Bates Number assigned to the first page of the document to
which it relates with the extension “TXT.” OCR is acceptable only if extracted text is not
available, such as for documents scanned from paper. Excel files and media files (such as audio
and/or video files) shall be produced in their native format and renamed to match their assigned

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 5 of 14

Bates Number with the appropriate extension such as “XLSX” or “WAV,” etc. Prior to
production, the Parties shall identify, discuss, and agree upon the production protocol for other
data that cannot be imaged or that is impractical to image. Prior to production, the Parties shall
also identify, discuss, and agree upon the production protocol for data from non-PC/nonWindows based systems such as Apple, LINUX or UNIX. All files produced in native format
shall have a corresponding placeholder image indicating the document was produced in native
format and bearing the Bates Number assigned to the document.
(c)

Color. Where the original of a produced document is in color, and color is

material to the interpretation of the document, the receiving party may request that the document
be produced in color (whether electronic or paper). Color images are to be provided in jpg
format.
(d)

Physical Documents. Documents that exist solely in physical hard-copy

format shall be converted/scanned to images and text and produced following the same
protocols outlined in Section 6, subparagraph (c) above. The scanned image “.tif’ files shall be
subject to an Optical Character Recognition (“OCR”) process with the OCR produced provided
as the text file using the extension “TXT.”
(e)

Bates Numbering. Bates Numbers shall be unique, sequential, and in a

consistently formatted string, e.g.,

a prefix plus a minimum 10-digit number

BATES0000000001, BATES0000000002, etc. Family relationships shall be preserved with the
parent document and its attachments Bates numbered sequentially. Each party’s Bates Number
format (prefix plus the number of digits in the Bates Number) must remain consistent
throughout that party’s productions. Bates Numbers are to be applied to the lower-right corner
of each image and shall not obscure any part of the underlying image.

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 6 of 14

(f)

Duplicates. To the extent that exact duplicate documents (based on MD5

or SHA-1 hash values at the document level) reside within a party’s data set, each party shall
produce only a single copy of a responsive document. This de-duping shall be done only on
exact duplicative documents. Only documents where the stand-alone document or the family
(consisting of the main parent document and all attachments) are exactly the same will be
considered exact duplicates.
(g)

Confidentiality

Endorsements.

If

applicable,

confidentiality

endorsements are to be applied to the lower-left corner of each image.

Confidentiality

endorsements shall not obscure any part of the underlying image or the Bates number.
Confidentiality endorsements shall be captured in the corresponding metadata field. To the
extent that application of a confidentiality designation to a different area of a given page is
necessary to avoid obscuring content/substance on that page, such designation/redesignation
shall be permitted (if done by the producing party) or required on a re-produced document (if
reasonably requested by a receiving party).
(h)

Production Mechanism. Produced documents shall be zipped into data

sets not exceeding 50 GBs and produced via a secure electronic exchange, such as Sharefile or
other ftp transfer. A production cover letter should accompany all communications related to
the delivery of data, to include the bates range, number of documents, and delivery format. Data
so produced shall be available for a minimum of one (1) month from the date of production. All
production sets shall be password protected and the password shall be exchanged via separate
communication.
(i)

Metadata. The Parties agree that a text delimited file (ASCII OR Unicode

are both acceptable) shall be produced setting forth the metadata fields for each responsive

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 7 of 14

document, as applicable: (1) Production Begin Number, (2) Production End Number, (3)
Production Begin Attach, (4) Production End Attach, (5) Date/Time Sent, (6) Date/Time
Received, (7) Email Subject, (8) Sender/From, (9) Recipient/To, (10) Email CC, (11) Email
BCC, (12) Date/Time Created, (13) Date/Time Last Modified, (14) File Name, (15) Document
Extension, (16) Author, (17) Custodian, (18) Confidentiality, (19) Redacted (Y/N) and (20)
MDF or SHA-1 Hash. For redacted electronic documents, metadata fields are to be produced
only to the extent such fields will not divulge redacted information.
7.

Protection of Confidential Material
(a)

General Protections. Confidential Information shall not be used or

disclosed by the parties, counsel for the parties or any other persons identified in subparagraph
(b) for any purpose whatsoever other than in this case, 1:21-cv-09538, pending before Judge
Lorna G. Schofield in the District Court for the Southern District of New York, including any
appeal thereof.
Limited Disclosures. The parties and their respective counsel shall not

(a)

disclose or permit the disclosure of any Confidential Information to any third person or any
entity except as set forth in subparagraphs (i)-(ix). Subject to the requirements of this Order,
Confidential Information may be disclosed to the following categories of persons:
(i)

Counsel. Counsel for the parties and employees of counsel (including
in-house counsel);

(ii)

Parties. The parties, including their respective, members, managers,
officers, employees, and agents, but in each case, only to the extent
reasonably necessary to assist with or make decisions with respect to
this case;

(iii)

The Chambers of the Honorable Lorna G. Schofield, and her
personnel;

(iv)

Court Reporters and Recorders. Court reporters and recorders

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 8 of 14

engaged for depositions or hearings;
(v)

Contractors. Litigation support services or non-professional
support personnel such as persons specifically engaged for the
limited purpose of making copies of documents or organizing or
processing documents, including outside vendors hired to process
electronically stored documents;

(vi)

Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action but only after such persons have
completed the certification of the “Confidentiality Agreement” that is
attached hereto as an exhibit. Nothing herein implies agreement to any
particular expert or to the permissibility of experts generally in this case;

(vii)

Mediator or Arbitrator. Any mediator or arbitrator that the Parties
engage in this matter or that this Court appoints, provided such person
has first executed the “Confidentiality Agreement” that is attached hereto
as an exhibit;

(viii)

Witnesses. During their depositions, or to prepare them for their
deposition or testimony, witnesses in this action to whom disclosure is
reasonably necessary. Witnesses shall not retain a copy of documents
containing Confidential Information, except witnesses may receive a
copy of all exhibits marked at their depositions in connection with
review of the transcripts. Pages of transcribed deposition testimony or
exhibits to depositions that are designated as Confidential Information
pursuant to the process set out in this Order must be separately bound
by the court reporter and may not be disclosed to anyone except as
permitted under this Order;

(ix)

Author or Recipient. The author or recipient of the document (not
including a person who received the document in the course of
litigation); and

(x)

Other by Consent. Other persons only by written consent of the
producing party or upon order of this Court and on such conditions as
may be agreed or ordered.

(b)

Control of Documents. Counsel for the Parties shall make reasonable

efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Each
person listed in the previous paragraph who, in the course of this litigation, is given access to
material designated as Confidential, shall be advised that the material or information is being

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 9 of 14

disclosed pursuant to, and subject to, the terms of this Order and may not be disclosed other
than pursuant to the terms thereof.
8.

Challenges by a Party to Designation as Confidential Information. The

designation of any material or document as Confidential Information is subject to challenge by
any party (a “Challenge”). A receiving party shall not be obliged to Challenge the propriety
of a confidentiality designation at the time made, and a failure to do so shall not preclude a
subsequent Challenge thereto. The following procedure shall apply to any Challenge.
(a)

Meet and Confer. Prior to seeking judicial resolution of a Challenge, the

attorneys for the affected parties or non-party witness shall attempt to confer in good faith in
person or by telephone in an effort to resolve the Challenge, in conformity with Fed. R. Civ. P.
37(a)(1). In conferring, the challenging party must explain the basis for its belief that the
confidentiality designation was not proper and must give the designating party an opportunity
to review the designated material, to reconsider the designation, and, if no change in designation
is offered, to explain the basis for the designation. The designating party must respond to the
Challenge within ten (10) business days.
(b)

Intervention. If the Meet and Confer does not resolve the Challenge, the

party objecting to the confidentiality designation may file on ECF a letter motion for a premotion discovery conference with the Court, as provided in Section III.A.1 of Judge Schofield’s
Individual Rules. Until the Court rules on any such application, the material or document
designated as Confidential that is the subject of the Challenge shall continue to be treated as
designated.
9.

Discovery not limited. The Order is protective in nature only and shall not

deprive any party of its rights to object to discovery by any other party of materials as to which

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 10 of 14

objection to disclosure is made. This Order is entered without prejudice to the right of any party
to move this Court for modification of or relief from any of its terms.
10.

Inadvertent Failure to Designate. 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 document(s) that it previously produced without limitation, the Producing Party may so designate
such material by so apprising all prior recipients in writing. Thereafter, this Court and all persons
subject to this Order will treat such designated portion(s) of the document(s) as Confidential. Each
person who has access to Confidential Information pursuant to this Order must take all due precautions
to prevent the unauthorized or inadvertent disclosure of such material. If any Confidential Information
is improperly disclosed to any person other than in a manner authorized by this Order, the Party
responsible for the disclosure or knowledgeable of such disclosure, upon discovery of the disclosure,
shall (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
to retrieve all unauthorized copies of the Confidential Information, (c) inform the person or persons to
whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person
or persons to execute the “Confidentiality Agreement” that is attached hereto as an exhibit. The Parties
agree that, in the event of any inadvertent production of a privileged document or work product,
the Parties will comply with Fed. R. Civ. P. 26(b)(5).
11.

Non-Waiver Agreement, Clawback Rights, and Return of Inadvertently

Disclosed Materials. A party that unintentionally produces attorney-client privileged, work
product protected, or common/joint defense privileged information to an adverse party without
intending to waive the privilege or protection shall promptly notify the adversary that it did not
intend a waiver by its disclosure. Pursuant to Federal Rule of Evidence 502(d) and Fed. R. Civ.
P. 26(b)(5)(B), if documents or information subject to a claim of attorney-client privilege, work-

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 11 of 14

product protection, or any other applicable claim of privilege or protection are unintentionally
disclosed, whether inadvertent or otherwise, such disclosure shall in no way prejudice or
otherwise constitute a waiver of, or estoppel as to, any claim of privilege or protection for such
information in this case or any state or federal proceeding. This Order shall be interpreted to
provide the maximum protection allowed under Federal Rule of Evidence 502(d) and Federal
Rule of Civil Procedure 26(b)(5)(B). This paragraph is intended to be and does constitute a
Federal Rule of Evidence 502(e) non-waiver agreement as provided for in Judge Schofield’s
Individual Rules (Rule II.A.2). Nothing herein is intended to or shall serve to limit a party’s right
to conduct a review of documents, electronically stored information, or other information
(including metadata), for relevance, responsiveness and/or segregation of privileged and/or
protected information before production.
12.

Filing of Confidential Information. This Order does not, by itself, authorize the

filing of any document under seal. Documents may be filed under seal only as provided in Judge
Schofield’s Individual Rules (Rule I.D.3).
13.

Waiver. 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 or any privilege or
protection; or (c) a ruling regarding the admissibility at trial of any document, testimony, or other
evidence.
14.

Final Disposition. Within 60 days of the final disposition of this action, including

all appeals, all recipients of Confidential Information must either return it including all copies
thereof to the Producing Party, or destroy such material including all copies thereof. In either
event, upon request by the Producing Party following the 60-day deadline, the recipient must
certify its return or destruction by submitting a written certification to the Producing Party.

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 12 of 14

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 Information. Any such archival copies that contain or constitute Confidential
Information remain subject to this Order. This Order will survive the termination of the
litigation and will continue to be binding upon the persons to whom Confidential Information
is produced or disclosed.
15.

Notice. When notice is permitted or required by the provisions of this Order,

such notice shall be in writing, directed to the undersigned counsel of the party to receive
such notice, at the corresponding addresses or email addresses indicated below. Notice
shall be delivered by U.S. mail, overnight delivery service, or by email, and shall be
effective upon receipt.
16.

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.
The parties are advised that the Court retains discretion as to whether to afford confidential treatment
to redacted information in Orders and Opinions.
So Ordered.
Dated: November 17, 2022
New York, New York

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 13 of 14

SO STIPULATED AND AGREED.
Dated: November 16, 2022.

/s/ Michael J. Volpe_______________
Michael J. Volpe
Christine C. Carey
Sarah A. Fucci
Venable LLP
Rockefeller Center
1270 Avenue of the Americas, 24th Floor
New York, New York 10020
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants RHC Operating, LLC
and Roosevelt Hotel Corporation, N.V.

/s/ Thomas J. McCormack___________________
Thomas J. McCormack
Robert Kirby
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
New York, New York 10019-6022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants PIA Investments Limited
and Pakistan International Airlines Corporation
Limited

/s/ Barry N. Saltzman
Barry N. Saltzman
Pitta LLP
120 Broadway, 28th Floor
New York, NY 10271
[phone]
Fax: [phone]
Email: [e-mail]
Attorney for Plaintiff Trustees of the New
York Hotel Trades Council and Hotel
Association of New York City, Inc.
Pension Fund

Case 1:21-cv-09538-LGS Document 98 Filed 11/17/22 Page 14 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------x
:
TRUSTEES of the NEW YORK HOTEL
:
TRADES COUNCIL AND HOTEL
:
ASSOCIATION OF NEW YORK CITY, INC.
:
PENSION FUND,
:
:
:
Plaintiffs,
:
:
- against :
RHC OPERATING, LLC, ROOSEVELT
:
HOTEL CORPORATION, N.V., PIA
:
INVESTMENTS LIMITED, PAKISTAN
:
INTERNATIONAL AIRLINES
:
CORPORATION LIMITED,
:
:
Defendants.
:
------------------------------------------------------------------x

Civil Action No. 1:21-cv-09538 (LGS)

CONFIDENTIALITY AGREEMENT
I, ____________________________________________, acknowledge that I have read
and understand the Order in this action governing the non-disclosure of those portions of
documents that have been designated as CONFIDENTIAL. I agree that I will not disclose such
Confidential Information to anyone other than for purposes of this litigation and that at the
conclusion of the litigation I will return all discovery information to the Party or attorney from
which 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 Order could subject me to punishment for contempt of Court.
______________________________
Dated: _____________________