Everett v. Green Key, LLC. et al

Filing 29

STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... The foregoing Stipulation is hereby APPROVED as an Order of the Court. (Signed by Judge Colleen McMahon on 5/9/2022) (kv)

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Case 1:22-cv-00140-CM Document 28 Filed
Page

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EBONE EVERETT,

Plaintifl:

USDCSDNY
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v.

GREEN KEY, LLC d/b/a GREEN KEY
SOLUTIONS, LLC, and HEALTH PLIJS
MANAGEMENT, LLC,

No. 1:22-cv-00 140 (CM)

Defendants.

STIPULAIIQN AND PBQ'[ECTIVE ORD&.R
Plaintiff Ebone Everett and Defendants Green Key, LLC d/b/a Green Key Solutions, LLC
and Health Plus Management, LLC (collectively, the "Parties"), by and through their
undersigned counsel, pursuant to Fed. R. Civ. P. 26 and 30, stipulate to this Stipulation and
Protective Order (the "Protective Order") as follows:
I.

As used in this Prokctive Order, these tenns have the following meanings:
a.

"Action" means this proceeding, Eve.re/Iv. Green Key Solutions, LLC, et

al., No. I :22-cv-00140 (CM), now pending in the United States DistriGt Court for the Southern

District of New York.
b.

"Confidential Information" shall mean all Piscovery Materials or

testimony, including any extract, abstract, chart, summary, recording, transcription, note, or copy
made therefrom, that is designated as such by the Disclosing Party in any manner provid~d in
Paragraph 3. Any Party may designate as Confidential Information any information that the
Party

in good faith believes contains proprietary, i.:onfidential business information, client,

commercial, financial, and/or personn,::I information, medical records and/or trade secrets that the

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Party would not nonnally reveal to third parties, or would require third parties to maintain in
confidence.
c.

"Disclosing Party" shall refer to any Party to this Action and any non-

party disclosing or producing Confidential Infonnation in connection with this Action.
d.

"Discovery Materials" shall be defined as all Documents, information, and

other materials exchanged by the Parties in connection with the Action.
e.

"Docum~nt" sh al I have thi;: full meaning ascribed to that term in Local

Rule 26.3 and Fed. R. Civ . P. 34 and shall mean any dl!signated documents or electronically
stored information-including writings, drawings, graphs, charts, photographs, sound recordings,
images, and other data or data compilations-stored in any medium from which information can
be obtained either directly or, if necessary, after translation by the responding party into a
reasonably usable form. The terms is also meant to include, without limitation, all original and
non-identical copies, and all non~identical drafts or versions of any document.
f.

"Receiving Party" shall refer to any Party to this Action and any non-party

that receives Confidential Information in connection with depositions, document production or
otherwise.
2.

All Discovery Mate.rials produ.ced or disclosed in the Action shall be used solely

for the prosecution or defense (including auy appeal therefrom) of the Action, and shall not be
used for any other purpose, including, without !imitation, any other litigation or any business,
commercial, competitive, or other purpose or function, except as otherwise required or directed
by law, court, tribunal, governmental agency, or selt'.-regulatory organization.
3.

lnfonnation may be designated as Confidential lnfonnation in the following

manner:

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a.

by imprinting or affixing a label with the word "CONFIDENTIAL" on the

first page, cover, or on each page of any Document, in a manner that does not interfere with the
legibility of the Document;
b.

by imprin1ing or affixing a label with the word "CONFIDENTIAL" next

to or above any response to an interrogatory or request for admission;
c.

with respect to infonnation that has previously been disclosed, by giving

written notice to opposing counsel designating the specific information as "CONFIDENTIAL,"

in which case, all infonnation so designate-d shall be subject to this Protel-tivc Order as if it had
been initially designated;

d.

with respect to testimony that is not transcribed, by giving written notice

to opposing counsel designating such portions as "CONFIDENTIAL;" or
e.

with res~t to transcribed testimony, by designating such portions as

"CONFIDENTIAL" on the record at the time such testimony is given or by designating such
portions as "CONFIDENTIAL'' following receipt of the transcribed testimony.

4.

Unless otherwise ordered by the Court or perrnitteq in writing by the Disclosing

Party, a Receiving Party may disclose Confidenti~J lnfonnation only to:
a.

counsel of record in this Action as well as its emplo;,ees to whom

disclosure is reasonably ne.cessary in C{>nnection with this Action;
b.

the named Parties, including its or their pa&t and present in.-house counsel,

officers, directors, and employees to whQm disclosure is reasonably necessary for this Action~
c.

experts, consultan~. investigators: mock jurors, and professional vendors,

including each of their staff, who are retained in ~onuection with thi:s Action;

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d.

-

outside photocopying, microfilming, or database service providers, trial

support finns, graphic production services, litigation support services, and translators engaged by
the Parties during this Action to whom disclosure is reasonably necessary for this Action;
e.

the Court, any court in which a Party petitions for discovery of a non-

party, any appellate court, necessary court personnel, and jurors;
f.

court reporters, stenographers, and video operators, including each of their

staff, to whom disclosure is reasonably necessary in this Action;
g.

witnesses in the Action to whom disclosure is reasonably necessary and

who have been infonned of their obligation to comply with this Protective Order;
h.

any mediator, referee, or other neutral agreed to by the Parties for the

purpose of dispute resolution in this Action;
1.

the author or recipient of a Documtmt containing the Confidential

Infonnation or a custodian or other person who otherwise possessed or knew the infonnation;

and
J.

other persons only: (a) after notice to all Parties; and (b) upon order of the

Court or upon written consent of the Disclosing Party.
5.

Any Party may object to a designation made pursuant to this Protective Order.

No Party shall be obligated to challenge the propriety of a designation pursuant to this Protective
Order when initially received, and a failure to do so shall not preclude a subsequent challenge
thereto. If, at any time, a Party objects to a desi1,rnation under this Protective Order, the objecting
Party shall notify the Disclosing Party in writing, which shall state with particularity the grounds
for objection. The Disclosing Party shall respond in writing to such objection and shall sate with
particularity the grounds for asserting that the document or infonnation is Confidential. If the

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Disclosing Party fails to make a timely response to the Objecting Party' s objection, the
challenged designation will be deemed to be void. The Parties, through counsel, shall meet and
confer in a good faith effort to resolve any disagreement regarding the Disclosing Party's
designation. If, for whatever reason, the Parties do not resolve their disagreement, the Parties
shall submit their dispute to the Court for resolution . The Party making the designation shall
have the burden of demonstrating the propriety of the designation. Any material designated
"CONFIDENTIAL" shall be treated as "CONFIDENTIAL" under the terms of this Protective
order until the dispute is resolved by the Court.
6.

Nothing in this Protective Order shall be construed as limiting a Disclosing

Party's use of its own Confidential lnformation. In addition, nothing in this Protective Order
shall prevent or in any way limit disclosure, use, or dissemination of any Confidential
Information that:
a.

is or became public knowledge, not in breach of this Protective Order;

b.

was acquired by a Party from a non-party having the right to disclose such

information; or
c.

was learned by a Party as a result of that Party's own independent efforts,

investigation, or inquiry.
7.

If a Receiving Party is served with a subpoena or a court order issued in another

litigation or an investigation that compels disclosure of any Confidential Information, the
Receiving Party must: (a) promptly notify the Disclosing Party in writing and provide the
Disclosing Party with a copy of the subpoena or court order; (b) promptly notify the individual or
entity who caused the subpoena or order to issue in the other litigation or investigation in writing
and provide it with a copy of this Protective Order; and (c) cooperate with respect to all

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reasonable procedures purst1ed by the Disclosing Party whose Confidential Information may be
affected.
8.

If notice is given pursuant to Paragraph 3(c), all Confidential Information so

designated shall be subject to this Protective Order as if it had been initially designated as such.
The Receiving Party must: (a) notify any non-party to whom disclosure has been made about the

confidentiality designation and the tem1s of this Protective Order; and (b) use best efforts to
retrieve all copies of the Confidential Information.
9.

The attorneys of record and all other persons receiving Confidential Information

under this Protective Order are responsible for employing reasonable measures to control access
to, and the duplication and distribution of, Confidential Information. If a Receiving Party learns
that, by inadvertence or otherwise, it has disclosed Confidential Information to any person or in
any circumstance not authorized under this Protective Order, the Receiving Party must
immediately: (a) notify the Disclosing Party of the unauthorized disclosures in writing; (b) use
best efforts to retrieve all unauthorized copies of the Confidential Information; and (c) inform the
person or persons to whom unauthorized disclosures were made of the terms of this Protective
Order~
10.

Nothing herein shall prevent any of the Parties from using Confidential Material

in any trial, hearing, or court conference in this litigation or from seeking further protection with
respect to the use of any Confidential Material in any trial, hearing, or court conference in this
litigation. Means to preserve the confidentiality of Confidential Material presented at trial,
hearing, or court conference shall be considered and implemented in advance of such trial,
hearing or court conference pursuant to the standards set forth by the Court. If Confidential
Material is used at a hearing, court conference, or trial, all portions of the transcripts and exhibits

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thereof which relate to Confidential Material shall be designated and treated pursuant to the
tenns of this Stipulation and Protective Order, unless the Court orders otherwise.
11.

The production of Confidential Material shall not constitute an admission or

concession by the producing or designating party that such Confidential Material is relevant or
probative of any issue or is admissible at any proceedings for any purpose.
12 .

A Party who seeks to file with the Court any Confidential Material must file such

Confidential Material under seal as authorized or permitted by the Court, in accordance with the
Court's procedures, and must remain under seal unless or until the Court orders otherwise.
13.

The production of privileged or work product protected documents, electronically

stored information ("ESI"), or other inforrmition, whether inadvertent or otherwise, is not a
waiver of the privilege or protection from discovcery in this case or in any other proceeding. If a
Disclosing Party identifies produced Discovery Material that it believes is privileged, it shall
notify the Receiving Party's counsel in writing, and identify the Discovery Material that it claims
is privileged. Likewise, if a Receiving Party otherwise becomes aware that it has received
information or materials which it knows or reasonably should know are privileged, the Receiving
Party shall immediately stop reading such materials and notify the Disclosing Party. Upon
learning that privileged Discovery Material was produced, the Receiving Party shall immediately
return the Discovery Material claimed to be privil~ged, and any copies thereof, and confirm to
the Disclosing Party in writing that all electronic copies oqhe document have been deleted or
otherwise destroyed. Any notes or summaries referring or relating to any privileged Discovery
Material shall be destroyed forthwith . The Disclosing Party shall update its privilege log to
reflect the Discovery Material. This paragraph does not constitute a waiver of the Receiving

Party's right to challenge the claim of privilege or of inadvertent production.

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14.

Within 60 days of the termination of this Action, including any appeals, each

Receiving Party must either return all Confidential Information to the Disclosing Party or destroy
such material, including all copies, abstracts, compilations, summaries, and any other form in
which the Confidential Information may have been reproduced or captured. Each Receiving
Party, at the Disclosing Party's request, shall provide certification in writing as to such
destruction within the 60-day period that: (a) identifies (by category, where appropriate) all the
Confidential Information that was returned or destroyed; and (b) affirms that the Receiving Party
has not retained any copies, abstracts, compilations, summaries, or any other format reproducing
or capturing any of the Confidential Information. Notwithstanding this provision, counsel for the
Receiving Party may retain an archival copy of all pleadings; motion papers; trial, deposition,
and hearing transcripts and exhibits; legal memoranda; correspondence; expert reports; attorney
work product; and consultant and expert worl< product, even if such materials contain
Confidential Information. Any such archival copies that contain or constitute Confidential
Information remain subject to this Protective Order.
15.

The Parties may designate pursuant to this Protective Order any information

produced by other Parties or non-parties in this Action. ln the event that additional persons or
entities l:>ecome Parties to this Action, such Parties shall not have access to Confidential
Information produced by or obtained from any Disclosing Party until the newly joined Parties or
their counsel confinn in writing to all other Parties that they have read this Protective Order and
agree to be bound by its terms.
16.

Nothing in this Protective Order shall be deemed to limit, prejudice, or waive any

right of the Parties: (a) to resist discovery with re~pect to, or to seek to obtain additional or
different prot~tion for, Discovery Materials claimed to be protected work product or privileged

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under federal or state law, Discovery Materials as to which a party claims a legal obligation not
to disclose, or Discovery Materials not required to be provided pursuant to federal or state law;
(b) to seek to modify or obtain relief from any aspect of this Stipulation and Protective Order;
(c) to object to the use, relevance or admissibility at trial or otherwise of any Discovery
Materials, whether or not designated in whole or in part as Confidential Material governed by
this Protective Order; or (d) otherwise to require that discovery be conducted according to
governing laws and rules.
17.

Any Party may apply to the Court for a modification of this Protective Order, and

nothing in this Protective Order shall be construed to prevent a Party from seeking such further
provisions enhancing or limiting protection as may be appropriate.
18.

The obligations imposed by this Protective Order shall survive the termination of

this Action and will continue to be binding upon all persons to whom Confidential Material is
produced or disclosed.
19.

This Court will retain jurisdiction-to the extent necessary to enforce any

obligations arising hereunder or to impose sanctions for any contempt thereof.
20.

Nothing herein shall be construed to modify any previously existing

confidentiality obligations of the Parties.

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THE FOLLOWING ADDENDUM IS DEEMED IN CORPORATED INTO THE
PARTIES' STIPULATION AND CONFIDENTIALITY ORDER
The parties understand that the Court's "so ordering" of this stipulation
does not make the Court a party to the stipulation or imply that the Court agrees
that documents designated as "Confidential" by the parties are in fact confidential.
It has been this Court's consistent experience that confidentiality
stipulations are abused by parties and that much material that is not truly
confidential is designated as such. The Court does not intend to be a party to such
practices. The Court operates under a presumption that the entire record should be
publicly available.
The Court does not ordinarily file decisions under seal or redact material
from them. If the Court issues a decision in this case that refers to "confidential"
material under this stipulation, the decision will not be published for ten days. The
parties must, within that ten•day period, identify to the Court any portion of the
decision that one or more of them believe should be redacted, provide the Court
with the purportedly confidential material, and explain why that material is truly
confidential. The Court will then determine whether the material is in fact
genuinely deserving of confidential treatment. The Court will only redact portions
of a publicly available decision if it concludes that the material discussed is in fact
deserving of such treatment. The Court's d~cision in this regard is final.

If this addendum is acceptable to the parties, the Court will sign their
proposed confidentiality stipulation, subject to the addendum. If this addendum is
not acceptable, the Court will not sign the stipulation, and should allegedly
confidential material be produced, the parties will be referred to the magistrate
judge for a document by document review and decision on whether that document
should be subject to confidential treatment.

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By signing below, each of the attorneys named below and the Parties they represent
undertake to abide by and be bound by the provisions of this Protective Order.

Dated: April 20, 2022
By:--------'"'fa','+-~~,_,,

Cathryn Harris-Mar'1Jles
PHILLIPS & ASSOCIATES, ATTORNEYS AT
LAW, PLLC
585 Stewart Ave., Suite 410
Garden City, New York 11530
[phone]
[e-mail]
Counsel for Plainlifl

\~c~

By:
Kelly CSpina \
LITTLER ME ~ ELSON P.C.
290 Broadhollow Road, Suite 305
Melville, NY 1174 7
[phone]
[e-mail]
Cuunselfor Defendant
Green Key SoluJions. LLC

U fi_.~

By:
Gabrielle Lev in
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
[phone]
glev [e-mail]
Counsel for Defendant
Health Plus MaTUJgement, LLC

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