Lateral Recovery, LLC et al v. Queen Funding, LLC et al

Filing 47

PROTECTIVE ORDER...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 9/15/2022) (tg)

Case 1:21-cv-09607-LGS Document 47 Filed 09/15/22 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LATERAL RECOVERY, LLC as assignee of
BENCHMARK BUILDER, INC., FTE NETWORKS,
INC., JUS-COM, LLC and FOCUS WIRELESS,
LLC,

21-CV-09607 (LGS)
PROTECTIVE ORDER

Plaintiffs,
v.
QUEEN FUNDING, LLC, YEHUDA KLEIN, and
THE JOHN AND JANE DOE INVESTORS,
Defendants.
The

parties

having

agreed

to

the

following

terms

of

confidentiality, and the Court having found that good cause exists
for issuance of an appropriately tailored confidentiality order
governing the pre-trial phase of this action, it is therefore
hereby
ORDERED that any person subject to this Order -- including
without

limitation

representatives,
parties

the

agents,

providing

parties
experts

discovery

in

to
and

this

this

action,

their

consultants,

all

third

action,

all

other

and

interested persons with actual or constructive notice of this Order
-- shall adhere to the following terms, upon pain of contempt:
1.

Any person subject to this Order who receives from any

other person any “Discovery Material” (i.e., information of any
kind provided in the course of discovery in this action) that is

Case 1:21-cv-09607-LGS Document 47 Filed 09/15/22 Page 2 of 9

designated as “Confidential” pursuant to the terms of this Order
shall not disclose such Confidential Discovery Material to anyone
else except as expressly permitted hereunder.
2.

The person producing any given Discovery Material may

designate as Confidential only such portion of such material as
consists of:
(a)

previously

nondisclosed

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

nondisclosed

material

relating

to

ownership or control of any non-public company;
(c)

previously

nondisclosed

business

plans,

product

development information, or marketing plans;
(d)

any information of a personal or intimate nature

regarding any individual; or
(e)

any other category of information hereinafter given

confidential status by the Court.
3.
Material

With respect to the Confidential portion of any Discovery
other

than

deposition

transcripts

and

exhibits,

the

producing person or that person's counsel may designate such
portion as “Confidential” by stamping or otherwise clearly marking
as “Confidential” the protected portion in a manner that will not

Case 1:21-cv-09607-LGS Document 47 Filed 09/15/22 Page 3 of 9

interfere with legibility or audibility, and by also producing for
future public use another copy of said Discovery Material with the
confidential information redacted. With respect

to deposition

transcripts and exhibits, a producing person or that person's
counsel may indicate on the record that a question calls for
Confidential information, in which case the transcript of the
designated testimony shall be bound in a separate volume and marked
"Confidential Information Governed by Protective Order" by the
reporter.
4.
producing

If at any time prior to the trial of this action, a
person

realizes

that

some

portion[s]

of

Discovery

Material that that person previously produced without limitation
should be designated as Confidential, he may so designate by so
apprising all parties in writing, and such designated portion[s]
of

the

Discovery

Material

will

thereafter

be

treated

as

Confidential under the terms of this Order.
5.

No person subject to this Order other than the producing

person shall disclose any of the Discovery Material designated by
the

producing

person

as

Confidential

to

any

other

person

whomsoever, except to:
(a)

the parties to this action;

(b)

counsel

retained

specifically

for

this

action,

including any paralegal, clerical and other assistant
employed by such counsel and assigned to this matter;

Case 1:21-cv-09607-LGS Document 47 Filed 09/15/22 Page 4 of 9

(c)

as to any document, its author, its addressee, and

any other person indicated on the face of the document
as having received a copy;
(d)

any witness who counsel for a party in good faith

believes may be 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;
(e)

any person retained by a party 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;
(f)

stenographers

engaged

to

transcribe

depositions

conducted in this action; and
(g)
6.

the Court and its support personnel.

Prior to any disclosure of any Confidential Discovery

Material to any person referred to in subparagraphs 5(d) or 5(e)
above, such person shall be provided by counsel with a copy of
this Protective Order and shall sign a Non-Disclosure Agreement in
the form annexed as an Exhibit hereto stating that that person has
read this Order and agrees to be bound by its terms. Said counsel
shall retain each signed Non-Disclosure Agreement, hold it in
escrow, and produce it to opposing counsel either prior to such

Case 1:21-cv-09607-LGS Document 47 Filed 09/15/22 Page 5 of 9

person being permitted to testify (at deposition or trial) or at
the conclusion of the case, whichever comes first.
7.

All

Confidential

Discovery

Material

filed

with

the

Court, and all portions of pleadings, motions or other papers filed
with the Court that disclose such Confidential Discovery Material,
shall be filed under seal with the Clerk of the Court and kept
under seal until further order of the Court. The parties will use
their best efforts to minimize such sealing. In any event, any
party filing a motion or any other papers with the Court under
seal shall also publicly file a redacted copy of the same, via the
Court’s Electronic Case Filing system, that redacts only the
Confidential Discovery Material itself, and not text that in no
material way reveals the Confidential Discovery Material. The parties shall follow
Individual Rule I.D.3.
8.

This

Stipulation

and

Protective

Order

shall

be

without prejudice to the right of any Party to oppose production
of any document or information on any and all grounds other than
confidentiality. Nothing in this Stipulation and Protective Order
shall be construed as an agreement by any Party to produce or
supply any document, or as a waiver by any Party of its right to
object to the production of any document, or as a waiver of any
claim of privilege with regard to the production of any document.
9.

Any party who either objects to any designation of

confidentiality, or who, by contrast, requests still further limits
on disclosure (such as “attorneys’ eyes only” in extraordinary

Case 1:21-cv-09607-LGS Document 47 Filed 09/15/22 Page 6 of 9

circumstances), may at any time prior to the trial of this action
serve upon counsel for the designating person a written notice
stating with particularity the grounds of the objection or request.
If agreement cannot be reached promptly, counsel for all affected
persons will submit a Joint Letter to the Court outlining their
position in order to obtain a ruling.
10.

Nothing in this Stipulation and Protective Order shall

prevent or prejudice any Party from applying to the Court for
relief therefore,

or

from

applying

to

the

Court

for

further

protective orders.
11.

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. The
Court

also

retains

unfettered

discretion

confidential treatment to any Confidential
contained

in

any

Confidential

Document

whether or not to afford
Document

or

information

submitted to the Court in

connection with any motion, application, or proceeding that may result
in an order and/or decision by the Court.

12.

Each person who has access to Discovery Material that

has been designated as Confidential shall take all due precautions
to prevent the unauthorized or inadvertent disclosure of such
material.

Case 1:21-cv-09607-LGS Document 47 Filed 09/15/22 Page 7 of 9

13.

If,

in

connection

with

this

litigation,

a

party

inadvertently discloses information subject to a claim of attorneyclient

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.
14.

If a disclosing party makes a claim of inadvertent

disclosure, the receiving party shall not thereafter review the
Inadvertently Disclosed Information for any purpose, except by
order of the Court. 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.

15.

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.
16.
receiving

As

with

party

any

may

information

move

the

redacted

Court

for

an

or

withheld,

Order

the

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.

Case 1:21-cv-09607-LGS Document 47 Filed 09/15/22 Page 8 of 9

17.

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.
18.

This Protective Order shall survive the termination of

the litigation.

Within 30 days of the final disposition of this

action, all Discovery Material designated as “Confidential,” and
all copies thereof, shall be promptly returned to the producing
person, or, upon permission of the producing person, destroyed.
19.

This Court shall 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.

SO STIPULATED AND AGREED.
Weinstein & Weinstein, LLP
Jacob Z. Weinstein
Counsel for Defendants
Dated:9/14/2022

White and Williams, LLP
/s/
Alex Corey
Counsel for Plaintiff
Dated:9/14/2022

SO ORDERED.
The parties are advised that the Court retains discretion as to
whether to afford confidential treatment to redacted
information in Orders and Opinions.
Dated: September 15, 2022
New York, New York

Case 1:21-cv-09607-LGS Document 47 Filed 09/15/22 Page 9 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LATERAL RECOVERY, LLC as assignee of
BENCHMARK BUILDER, INC., FTE NETWORKS,
INC., JUS-COM, LLC and FOCUS WIRELESS,
LLC,

21-CV-09607 (LGS)
NON-DISCLOSURE AGREEMENT

Plaintiffs,
v.
QUEEN FUNDING, LLC, YEHUDA KLEIN, and
THE JOHN AND JANE DOE INVESTORS,
Defendants.
I,

, acknowledge that I have read and

understand the Protective Order in this action governing the nondisclosure of those portions of Discovery Material that have been
designated as Confidential. I agree that I will not disclose such
Confidential Discovery Material 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 whom I received it. By acknowledging these obligations under
the Protective Order, I understand that 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 Protective Order could subject me to punishment for
contempt of Court.
Dated: