Hezi et al v. Celsius Holdings, Inc.

Filing 24

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Victor Marrero on 5/9/2022) (ate)

Case 1:21-cv-09892-VM Document 24 Filed 05/09/22 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

AMIT HEZI AND JOSEPH NINA,
Plaintiff(s),
-v-

CELSIUS HOLDINGS, INC.,
Defendant(s).

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5/9/2022
21-cv-9892 (VM)
PROTECTIVE ORDER

VICTOR MARRERO, United States District Judge:
WHEREAS all of the parties to this action (collectively, the “Parties,” and individually, a
“Party”) request that this Court issue a protective order pursuant to Federal Rule of Civil
Procedure 26(c) to protect the confidentiality of certain nonpublic and confidential material that
will be exchanged pursuant to and during the course of discovery in this case;
WHEREAS, the Parties, through counsel, agree to the following terms;
WHEREAS, the Parties acknowledge that this Protective Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords only
extends to the limited information or items that are entitled, under the applicable legal principles,
to confidential treatment;
WHEREAS, the Parties further acknowledge that this Protective Order does not create
entitlement to file confidential information under seal; and
WHEREAS, in light of these acknowledgements, and based on the representations of the
Parties that discovery in this case will involve confidential documents or information, the public
disclosure of which will cause harm to the producing person and/or third party to whom a duty of
confidentiality is owed, and to protect against injury caused by dissemination of confidential
documents and information, this Court finds good cause for issuance of an appropriately tailored
confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that any person subject to this Protective Order—including
without limitation the parties to this action, their representatives, agents, experts and consultants,
all third parties providing discovery in this action, and all other interested persons with actual or
constructive notice of this Protective Order—shall adhere to the following terms:

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1.
meanings:

In this Protective Order, the words set forth below shall have the following

a.
“Proceeding” means the above entitled proceeding Hezi and Nina v.
Celsius Holdings, Inc., Case Number 21-cv-9892 (S.D.N.Y.).
b.
“Court” means the Hon. Victor Marrero, or any other judge to which this
Proceeding may be assigned, including Court staff participating in such proceedings.
c.
“Confidential” means any Documents, Testimony, or Information which is
in the possession of a Designating Party who believes in good faith that such Documents,

applicable law.

d.

Testimony, or Information is entitled to confidential treatment under

e.
“Confidential Materials” means Any Documents, Testimony, or
Information as defined below designated as “Confidential” pursuant to the provisions of this
Protective Order.
f.
“Highly Confidential” means any information which belongs to a
Designating Party who believes in good faith that the Disclosure of such information to another
Party or non-Party would create a substantial risk of serious financial or other injury that cannot
be avoided by less restrict means.
g.
“Highly Confidential materials” means any Documents, Testimony, or
Information, as defined below, designated as “Highly Confidential – Attorneys’ Eyes Only”
pursuant to the provisions of this Protective Order.
h.
“Designating Party” means the Party that designates Documents,
Testimony, or Information, as defined below, as “Confidential” or “Highly Confidential –
Attorneys’ Eyes Only.”
i.
“Disclose” or “Disclosure” or “Disclosed” means to reveal, divulge, give,
or make available Materials, or any part thereof, or any information contained therein.
j.
“Documents” means a “Writing,” “Recording,” “Photograph,” “Original”
and “Duplicate” as those terms are defined by Fed. R. of Evidence Rule 1001, which has been
produced in discovery in this Proceeding by any person or entity.
k.

“Information” means the contents of Documents or Testimony.

l.
“Testimony” means all depositions, declarations, or other testimony taken
or used in this Proceeding.
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2.
Any person subject to this Protective Order who receives from any other person
subject to this Protective Order any “Discovery Material” (i.e., information of any kind produced
or disclosed pursuant to and in course of discovery in this action) that is designated as
“Confidential” pursuant to the terms of this Protective Order (hereinafter “Confidential
Discovery Material”) shall not disclose such Confidential Discovery Material to anyone else
except as expressly permitted hereunder.
The person producing any given Discovery Material may designate as
3.
“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” only such portion of such
material, the public disclosure of which is either restricted by law or will cause harm to the
business, commercial, financial or personal interests of the producing person, and/or a third
party to whom a duty of confidentiality is used and that 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
Court.

(e) any other category of information hereinafter given confidential status by the

4.
With respect to the “Confidential” or “Highly Confidential – Attorneys’ Eyes
Only” portion of any Discovery Material other than deposition transcripts and exhibits, the
producing person or that person’s counsel may designate such portion as “Confidential” or
“Highly Confidential – Attorneys’ Eyes Only” by: (a) stamping or otherwise clearly marking as
“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” 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.
5.
With respect to deposition transcripts, a producing person or that person’s counsel
may designate such portion as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only”
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
(consisting of question and answer) 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 30 days after a deposition has concluded, of the specific pages and
lines of the transcript and/or the specific exhibits that are to be designated “Confidential” or
“Highly Confidential – Attorneys’ Eyes Only,” in which case all counsel receiving the transcript
will be responsible for marking the copies of the designated transcript or exhibit (as the case may
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be), in their possession or under their control as directed by the producing person or that person’s
counsel by the reporter.
6.
If at any time prior to the trial of this action, a producing person realizes that some
portion(s) of Discovery Material that she, he, or it had previously produced without limitation
should be designated as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only,” she, he,
or it may so designate by so apprising all prior recipients of the Discovery Material in writing,
and thereafter such designated portion(s) of the Discovery Material will thereafter be deemed to
be and treated as Confidential under the terms of this Protective Order.
7.
No person subject to this Protective Order other than the producing person shall
disclose any of the Discovery Material designated by the producing person as “Confidential” or
“Highly Confidential – Attorneys’ Eyes Only” to any other person whomsoever, except to:
(a) the Parties to this action, their insurers, and counsel to their insurers;
(b) counsel retained specifically for this action, including any paralegal, clerical
and other assistant employed by such counsel and assigned to this matter;
(c) outside vendors or service providers (such as copy-service providers and
document-management consultants, graphic production services or other litigation support
services) that counsel hire and assign to this matter, including computer service personnel
performing duties in relation to a computerized litigation system;
(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 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 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;
(g) 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;
(h) stenographers engaged to transcribe depositions conducted in this action; and
(i) this Court, including any appellate court, and the court reporters and support
personnel for the same.
8.
Prior to any disclosure of any Confidential Discovery Material to any person
referred to in subparagraphs 7(d), 7(f) or 7(g) 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
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annexed as an Exhibit hereto stating that that person has read this Protective 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 person being permitted to
testify (at deposition or trial) or at the conclusion of the case, whichever comes first.
9.
Any Party who objects to any designation of confidentiality 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. If the Parties cannot reach agreement promptly,
counsel for all Parties will address their dispute to this Court in accordance with Paragraph 1(B)
of this Court’s Individual Practices in Civil Cases.
10.
Any Party who requests additional limits on disclosure (such as “attorneys’ eyes
only” in extraordinary circumstances) may at any time prior to the trial of this action serve upon
counsel for the receiving Party a written notice stating with particularity the grounds for the
request. If the Parties cannot reach agreement promptly, counsel for all Parties will address their
dispute to this Court in accordance with Paragraph 1(B) of this Court’s Individual Practices in
Civil Cases.
11.
The inadvertent production by any of the undersigned Parties or non-Parties to
the Proceedings of any Document, Testimony, or Information during discovery in this
Proceeding without a “Confidential” or “Highly Confidential - Attorneys’ Eyes Only”
designation, shall be without prejudice to any claim that such item is “Confidential” or “Highly
Confidential - Attorneys’ Eyes Only” and such Party shall not be held to have waived any rights
by such inadvertent production. In the event that any Document, Testimony, or Information that is

subject to a “Confidential” or “Highly Confidential—Attorneys Eyes Only” designation is inadvertently
produced without such designation, the Party that inadvertently produced the document shall give written
notice of such inadvertent production within twenty (20) days of discovery of the inadvertent production,
together with a further copy of the subject Document, Testimony, or Information designated as
“Confidential” or “Highly Confidential—Attorneys Eyes Only” (the “Inadvertent Production Notice”).
Upon receipt of such Inadvertent Production Notice, the Party that received the inadvertently produced
Document, Testimony, or Information shall promptly destroy the inadvertently produced Document,
Testimony, or Information and all copies thereof, or, at the expense of the producing Party, return such
together with all copies of such Document, Testimony or Information to counsel for the producing Party
and shall retain only the “Confidential” or “Highly Confidential—Attorneys Eyes Only” materials.
Should the receiving Party choose to destroy such inadvertently produced Document, Testimony, or
Information, the receiving Party upon request of the producing Party shall notify the producing Party in
writing of such destruction within ten (10) days of receipt of written notice of the inadvertent production.
In the event that this provision conflicts with any applicable law regarding waiver of confidentiality
through the inadvertent production of Documents, Testimony or Information, such law shall govern.

12.
A Party may be requested to produce Discovery Material that is subject to
contractual or other obligations of confidentiality owed to a third party. Within two business
days of receiving the request, the receiving Party subject to such obligation shall inform the third
party of the request and that the third party may seek a protective order or other relief from this
Court. If neither the third party nor the receiving Party seeks a protective order or other relief
from this Court within 21 days of that notice, the receiving Party shall produce the information
responsive to the discovery request but may affix the appropriate controlling designation.
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13.
Recipients of Confidential Discovery Material under this Protective Order may
use such material solely for the prosecution and defense of this action and any appeals thereto.
Nothing contained in this Protective Order, however, will affect or restrict the rights of any
person with respect to its own documents or information produced in this action. Nor does
anything contained in this Protective Order limit or restrict the rights of any person to use or
disclose information or material obtained independently from and not through or pursuant to the
Federal Rules of Civil Procedure.
Nothing in this Protective Order will prevent any person subject to it from
14.
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, however, that such person receiving a request, will provide written
notice to the producing person before disclosure and 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 person will have the right to oppose compliance with the
subpoena, other compulsory process, or other legal notice if the producing person deems it
appropriate to do so.
15.
All persons seeking to file redacted documents or documents under seal with the
Court shall follow Rule 2(G) of this Court’s Individual Practices in Civil Cases. No person may
file with the Court redacted documents or documents under seal without first seeking leave to
file such papers. All persons producing Confidential Discovery Material are deemed to be on
notice that the Second Circuit puts limitations on the documents or information that may be filed
in redacted form or under seal and that the Court retains discretion not to afford confidential
treatment to any Confidential Discovery Material submitted to the Court or presented in
connection with any motion, application, or proceeding that may result in an order and/or
decision by the Court unless it is able to make the specific findings required by law in order to
retain the confidential nature of such material. Notwithstanding its designation, there is no
presumption that Confidential Discovery Material will be filed with the Court under seal. The
Parties will use their best efforts to minimize such sealing.
16.
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.
17.
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.
18.
Any Personally Identifying Information (“PII”) (e.g., social security numbers,
financial account numbers, passwords, and information that may be used for identity theft)
exchanged in discovery shall be maintained by the persons who receive such information and are
bound by this Protective Order in a manner that is secure and confidential. In the event that the
person receiving PII experiences a data breach, she, he, or it shall immediately notify the
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producing person of the same and cooperate with the producing person to address and remedy
the breach. Nothing herein shall preclude the producing person from asserting legal claims or
constitute a waiver of legal rights or defenses in the event of litigation arising out of the
receiving person’s failure to appropriately protect PII from unauthorized disclosure.
19. 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.
20.
All persons subject to this Protective Order acknowledge that willful violation of
this Protective Order could subject them to punishment for contempt of Court. This Court shall
retain jurisdiction over all persons subject to this Protective Order to the extent necessary to
enforce any obligations arising hereunder or to impose sanctions for any contempt thereof.
SO STIPULATED AND AGREED.

/s/ Joel Rothman
Dated: May 6, 2022

/s/ Zachary Chrzan
Dated: May 6, 2022

SO ORDERED
Dated: May 9, 2022
New York, New York

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

AMIT HEZI AND JOSEPH NINA,
Plaintiff(s),
-v-

CELSIUS HOLDINGS, INC.,
Defendant(s).

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21-cv-9892

(VM)

NON-DISCLOSURE
AGREEMENT

VICTOR MARRERO, United States District Judge:
I,
, acknowledge that I have read and understand the
Protective Order in this action governing the non-disclosure 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 either return all discovery information to the party or
attorney from whom I received it, or, upon permission of the producing party, destroy such
discovery information. 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: