Application of Alberto Safra for an Order to take Discovery for use in foreign proceedings pursuant to 28 U.S.C. 1782

Filing 76

AMENDED 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 James L. Cott on 2/8/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE APPLICATION OF ALBERTO
SAFRA FOR AN ORDER TOTAKE
DISCOVERY FOR USE IN FOREIGN
PROCEEDINGS PURSUANT TO 28 U.S.C.
§ 1782

USDCSDNY
DOCU1'1ENT
ELECTRONICALLY FILED
DOC#: - - - - - DATE FILED : 2/8/2024

Civil Action No. 21-mc-00640-GHW-JLC

AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT
AND PROTECTIVE ORDER

JAMES L. COTT, United States Magistrate Judge:
WHEREAS, all the parties to this action, including intervenor Vicky Safra
(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 sensitive
medical information that they may need to disclose in connection with this proceeding, the Swiss
Action, or the London Arbitration;
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds good cause exists for issuance of an appropriately
tailored protective order,
IT IS HEREBY ORDERED that any person subject to this Order -

including

without limitation the Parties to this proceeding (including their respective corporate parents,
successors, and assigns), 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 Order and within the jurisdiction of this Court - will adhere to the following terms,
upon pain of contempt:

1.
meanings:

Definitions. As used m this Order, these terms have the following

(a)

"Attorney" means an attorney who has appeared in this action and/or who
represents a Party in connection with this action, the Swiss Action, or the
London Arbitration;

(b)

"Confidential Information" means documents, deposition testimony,
information, or other material that is protected health information ("PHI")
under the Health Insurance Portability and Accountability Act of 1996 and
its implementing regulations ("HIPAA") or contains or refers to (i) any
information of a personal or intimate nature regarding any individual,
including but not limited to medical information not protected under
HIPAA; or (ii) any financial information or material not previously made
available to the public;

(c)

"Designating Party" means the Party who designates information as
"Confidential";

(d)

"Discovery Material" means information of any kind produced or disclosed
in the course of discovery in this proceeding, including by deposition;

(e)

"Document" refers to any information or material within the scope of Fed.

R. Civ. P. 34 that is disclosed or produced in discovery in connection with
this matter, including at a deposition;
(f)

"Swiss Action" refers to the legal action in Switzerland initiated by Alberto
Safra ("Petitioner") against Vicky Safra ("Ms. Safra"), individually and in
her capacity as executrix of the estate of Mr. Joseph Yacoub Safra, Jacob
Safra, David Safra, and Esther Safra relating to the estate of Mr. Joseph
Yacoub Safra, filed on May 3, 2022, currently pending before the Juge de

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la Commune de Crans-Montana, including any claims or counterclaims
asserted in that action by any party, and including any subsequent
proceedings or appeal(s) connected thereto;
(g)

"London Arbitration" refers to the arbitration in the United Kingdom with
case reference LCIA Case No. 225494, initiated by Alberto Safra
("Petitioner") against Vicky Safra ("Ms. Safra") individually and in her
capacity as executrix of the estate of Mr. Joseph Yacoub Safra, Jacob Safra,
David Safra, Esther Safra Dayan and JS International Holdings Limited
relating to, among other issues, the estate of Mr. Joseph Yacoub Safra, filed
on May 10, 2022, currently proceeding before a tribunal appointed in
accordance with the Rules of the London Court of International Arbitration
(LCIA), together with all other arbitrations now or in future consolidated
with said arbitration, and including any subsequent arbitration or court
proceedings or appeal(s) connected thereto;

(h)

"Producing Party" shall have the meaning set forth in Paragraph 4 of this
Protective Order;

(i)

"Respondents" means collectively Dr. Susan Bressman, Dr. Eli L Diamond,
Dr. Valentin Fuster, Dr. Viviane Tabar, Mount Sinai Health System, and
Memorial Sloane Kettering Cancer Center.

2.

With respect to Discovery Material that a person has designated as

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

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3.

A Designating Party may designate documents, deposition testimony, or

the information as "Confidential" if the material contains Confidential Information.
4.

With respect to the portion of any Discovery Material, other than deposition

transcripts and exhibits, containing Confidential Information, the Party or person producing or
disclosing Discovery Material ("Producing Party") or its counsel may designate such portion as
"Confidential" by stamping or otherwise clearly marking as "Confidential" the protected portion
in a manner that will not interfere with legibility or audibility.
5.

A Designating Party or its counsel may designate deposition exhibits or

portions of deposition transcripts as Confidential 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 thirty (30) 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 Designating Party or that person's counsel. During the 30day period following a deposition, all Parties will treat the entire deposition transcript as if it had
been designated Confidential.
6.

If 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.
Thereafter, the Court and all persons subject to this Order will treat such designated portion(s) of
the Discovery Material as Confidential.

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7.

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 - including, for the avoidance
of doubt, any transcript of deposition testimony -

or other evidence. Furthermore, nothing

contained in this Order will be construed in any way as a limitation on any Party's right to object
in the Swiss Action or London Arbitration to the admissibility or evidentiary weight of any
Document -

including, for the avoidance of doubt, any transcript of deposition testimony -

or

other evidence in the Swiss Action or London Arbitration.
8.

Where a Designating Party has designated Discovery Material as

Confidential, other persons subject to this Order may disclose such information only to the
following persons:
(a)

the Court and its staff in this action;

(b)

the courts or tribunals overseeing the Swiss Action and their staff;

(c)

the parties to the Swiss Action;

(d)

the tribunal overseeing the London Arbitration and its staff;

(e)

the Secretariat of the LCIA and its staff;

(f)

the parties to the London Arbitration;

(g)

counsel for the parties to this proceeding, the Swiss Action, or the London
Arbitration, including any paralegal, clerical, or other assistant that such
outside counsel employs and assigns to this matter;

(h)

outside vendors or service providers (such as copy-service providers,
translators anddocument-management consultants) that counsel hire and

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assign to this matter, provided such person has first executed a NonDisclosure Agreement in the form annexed as Exhibit A hereto;
(i)

as to any document, its author, its addressee, and any other person indicated
on the face of the document as having received a copy;

G)

any person called to testify in the Swiss Action, during the provision of such
person's testimony in the Swiss Action, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto;

(k)

any person retained by any court or tribunal overseeing the Swiss Action to
serve as an expert in the Swiss Action, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto;

(1)

any person that a party to the London Arbitration is considering calling to
testify in the London Arbitration, for the purposes of the preparation and
provision of such person's testimony in the London Arbitration, provided
such person has first executed a Non-Disclosure Agreement in the form
annexed as Exhibit A hereto;

(m)

any person retained by any tribunal overseeing the London Arbitration to
serve as an expert in the London Arbitration, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto;

(n)

any person retained by counsel for a party to this proceeding, the Swiss
Action, or the London Arbitration, to provide specialized advice to such

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counsel in connection with this proceeding, the Swiss Action, or the London
Arbitration provided such person has first executed a Non-Disclosure
Agreement in the form annexed as Exhibit A hereto;
(o)

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

(p)

stenographers engaged to transcribe any hearing conducted in the London
Arbitration.

9.

Any Party intending to use information designated as Confidential under

this Order in connection with the Swiss Action must take reasonable steps as permitted by Swiss
law to request that any parties to the Swiss Action and any court overseeing the Swiss Action
protect the Confidential Information from public disclosure. Any Party intending to use
information designated as Confidential under this Order in connection with the London Arbitration
must take reasonable steps as permitted by the applicable law to request that any parties to the
London Arbitration and any court or tribunal overseeing the London Arbitration protect the
Confidential Information from public disclosure. The Party intending to use information
designated as Confidential agrees not to dispute the confidentiality of the information, except as
otherwise provided for in this Order. If any Party has a reasonable belief that the information is at
risk of public disclosure, it is entitled to seek relief from this Court.
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. In
filing Discovery Material containing Confidential Information with this Court, or filing portions
of any pleadings, motions, or other papers that disclose such Confidential Information

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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.
11.

Any Party who objects to any designation of confidentiality may at anytime

before commencement of the main phase of the Swiss Action (within the meaning of Art. 228 of
the Swiss Civil Procedure Code) serve upon counsel for the Designating Party a written notice
stating with particularity the grounds of the objection. If the Parties cannot reach agreement within
five (5) business days, counsel for all affected Parties will address their dispute to this Court. The
objecting party shall bear the initial burden of establishing that Discovery Material has been
improperly designated as Confidential.
12.

Any Party who requests additional limits on disclosure (such as "attorneys'

eyes only" in extraordinary circumstances), may at any time before the main phase of the Swiss
Action (within the meaning of Art. 228 of the Swiss Civil Procedure Code) serve upon counsel for
the recipient Parties a written notice stating with particularity the grounds of the request. If the
Parties cannot reach agreement within five (5) business days, counsel for all affected Parties will
address their dispute to this Court in accordance with Rule 2(C) of this Court's Individual Rules
of Practice in Civil Cases.
13.

Recipients of Discovery Material under this Order may use such material

solely for the prosecution and defense of the Swiss Action and/or the London Arbitration and not
for any other purpose or in connection with any other proceeding not expressly permitted by this
Order. Nothing contained in this Order, however, will affect or restrict the rights of any Party with

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respect to its own documents or information produced in this action. All Parties acknowledge and
agree that they will not seek to modify this Order to permit the use of any PHI produced in this
proceeding in any proceeding other than this proceeding,the Swiss Action, or the London
Arbitration. Subject to the preceding sentence, nothing contained in this Order will preclude: (a)
any Party from seeking to modify this Order to permit use of Discovery Material (except for PHI)
in any legal actionoutside of the Swiss Action or the London Arbitration; or (b) any Party from
opposing any such request for modification.
14.

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

Material in its possession in response to a court order, or if required to produce by law or by any
United States government agency having jurisdiction, provided that such Party gives written notice
to the Designating Party as soon as reasonably possible, and if permitted by the time allowed under
the request, at least fourteen (14) days before any disclosure. Upon receiving such notice, the
Designating Party will bear the burden to oppose compliance with any United States government
agency subpoena or court order, if the Designating Party deems it appropriate to do so.
15.

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.
16.

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.

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17.

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

party shall, within five (5) 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.
18.

Within ten (10) 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.
19.

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.
20.

The Designating 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.
21.

Within sixty (60) days of the final disposition the Swiss Action or the final

disposition of the London Arbitration-which ever of those is to occur on the later date--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. 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.

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22.

This Order will survive the tennination ofthis proceeding, the Swiss Action,

and the London Arbitration and will continue to be binding upon all persons to whom Confidential
Discovery Material is produced or disclosed.
23.

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.

Dated: February 8, 2024
New York, New York
SO ORDERED.

Dated: February 8, 2024
By:

Isl Michael Carlimky
Michael Carlinsky
Kevin Reed
Lucas V.M. Bento
Quinn Emanuel Urquhart &
Sullivan, LLP
51 Madison A venue, Floor 22
New York, NY 10010

By:

Isl Joseph A. Matteo
Joseph A. Matteo
BARNES & THORNBURG LLP
390 Madison Avenue, 12th Floor
New York, New York 10017
Tel. [phone]
[e-mail]
Attorneys for Memorial Sloan Kettering
Cancer Center, Dr. Eli L. Diamond and
Dr. Viviane Tabar

Gavin S. Frisch (pro hac vice)
Quinn Emanuel Urquhart &
Sullivan, LLP
111 Huntington A venue, Suite 520
Boston, MA 02199

Isl Erica Liu
Erica Liu
THE OFFICE OF THE GENERAL
COUNSEL
MOUNT SINAI HEALTH SYSTEM
150 East 42nd Street, Suite B-2.17
New York, New York 10017
Tel. [phone]

Attorneys for Petitioner Alberto
Joseph Safra

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[e-mail]
Attorneys for Mount Sinai Health
System, Dr. Susan Bressman and Dr.
Valentine Fuster
IslMatthew J. Porpora
Sharon L. Nelles
Matthew J. Porpora
Michael P. Devlin
Karl L. Bock
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Intervenor Vicky Safra

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE APPLICATION OF ALBERTO SAFRA
FOR AN ORDER TO TAKE DISCOVERY FOR
USE IN FOREIGN PROCEEDINGS
PURSUANT TO 28 U.S.C. § 1782

Civil Action No. 21-mc-00640-GHW-JLC
NON-DISCLOSURE AGREEMENT

I,______________ acknowledge that I have read, understand and will
comply with the Protective Order in this action governing the use and non-disclosure of those
portions of Discovery Material that have been designated as Confidential/Attorneys' Eyes Only.
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:

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