SS&C Technologies Holdings, Inc. et al v. Arcesium LLC

Filing 29

CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...Notwithstanding anything to the contrary in this stipulation, the parties must comply with the Undersigned's Individual Rules in the event of a discovery dispute (see Rule 3(B)) or when filing materials covered by the protective order (see Rule 5). (Signed by Judge Valerie E. Caproni on 5/10/2022) (tg)

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 11of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------- x
:
SS&C TECHNOLOGIES HOLDINGS, INC.,
:
and ADVENT SOFTWARE, INC.,
:
:
Plaintiffs,
:
v.
:
:
ARCSESIUM LLC,
:
:
Defendant.
:
:
---------------------------------- x

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 5/10/2022

Case No: 22-cv-2009 (VEC)

CONFIDENTIALITY STIPULATION
AND [PROPOSED] PROTECTIVE
ORDER

WHEREAS, the parties having agreed that discovery in this litigation is likely to entail
the exchange of certain documents and information that the producing parties regard as trade
secrets, proprietary, commercially sensitive, or otherwise are maintained as non-public in
confidence by the producing parties in the ordinary course, and
WHEREAS the parties having agreed on the following terms for the protection of such
information, and
WHEREAS the Court having found that good cause exists for the issuance of this order
(“Protective Order”) pursuant to Rule 26(c) of the Federal Rules of Civil Procedure,
IT IS HEREBY ORDERED that the following terms shall apply to the production of
discovery in this action:
1.

DEFINITIONS
1.1
Party: Any named party to this litigation, including all of its officers, directors,
in-house counsel, and employees;
1.2
Discovery Material: All items or information, regardless of the medium or
manner generated, stored, or maintained that are produced or generated in disclosures or
responses to discovery in this litigation and the contents and information contained
therein, including but not limited to documents, interrogatory answers, responses to
requests for admission, deposition transcripts, deposition exhibits, and any other
discovery materials produced by a party in response to or in connection with any
discovery conducted in this litigation, and any copies, notes, abstracts, or summaries of
the foregoing materials;

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 22of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page of 14

1.3
Producing Party: A Party or non-party that produces Discovery Material in this
litigation;
1.4
Receiving Party: A Party that receives Discovery Material from a Producing
Party;
1.5
Designating Party: A Party or non-party that designates Discovery Material as
Protected Material as set forth herein;
1.6
Protected Material: Any Discovery Material that is designated pursuant to the
categories and definitions set forth below (Sections 1.7-1.9);
1.7
Confidential Information: All Discovery Material furnished by a Producing Party
that the Producing Party in good faith reasonably believes contains trade secrets,
confidential research, development, or commercial information, sensitive and non-public
personal information, or other non-public information that is maintained in confidence
and that the Producing Party believes in good faith requires the protection of this
Protective Order;
1.8
Highly Confidential –Attorneys’ and Experts’ Eyes Only Information: All
Discovery Material furnished by a Producing Party that contains trade secrets or other
confidential research, development, or commercial information that is so highly
competitive and sensitive in nature – such as certain information relating to pricing,
production costs, customers, marketing, product development, or financial data –that
disclosure could result in a likelihood of serious competitive or other harm to the
Producing Party if disclosed to the other Party’s business personnel; and
1.9
Highly Confidential – Outside Counsel and Experts’ Eyes Only Information: all
Discovery Material furnished by a Producing Party that contains trade secrets or other
confidential research, development, or commercial information that is of such a highly
competitive and sensitive nature that disclosure could result in a substantial likelihood of
serious competitive or other harm to the Producing Party if disclosed to the other party’s
business or legal personnel. Examples of this information include, but are not limited to,
negotiations with potential or actual customers, investors, partners, or acquirers,
disclosure of which would harm present or prospective business plans; confidential
material regarding acquisition offers or expression of interest, proposed transactions, or
other business combinations that are not public, disclosure of which would harm present
or prospective business plans, negotiations, or relationships; and highly sensitive and
confidential product development information, including software code, disclosure of
which would harm market opportunities. It is the intention of the Parties that the Highly
Confidential – Attorneys’ and Experts Eyes Only designation shall be used on a limited
basis, only where considered appropriate by the Producing Party.

2

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 33of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page of 14

2.

DESIGNATING PROTECTED MATERIAL
2.1
Counsel for any Party may designate any Discovery Material, in whole or in part,
as Protected Material pursuant to this Protective Order, if the Designating Party
determines in good faith and with particularity that the Discovery Material in question
meets the relevant categories of Protected Material as defined herein.
2.2
Misdesignation. An inadvertent failure to designate a document or information or
misdesignation of a document or information as Confidential, Highly Confidential –
Attorneys’ & Experts’ Eyes Only, or Highly Confidential – Outside Counsels’ &
Experts’ Eyes Only Material does not waive the right to so designate the document or
information. If a Producing Party designates a document as Confidential, Highly
Confidential – Attorneys’ & Experts’ Eyes Only, or Highly Confidential – Outside
Counsels’ & Experts’ Eyes Only Material after it was initially produced, the Receiving
Party, on notification of the designation, shall immediately treat the material as such
Discovery Material in accordance with this Order, and request that any other person to
whom the material previously had been disclosed also treat the material in accordance
with the designation. No Party shall be found to have violated this Order for failing to
maintain the confidentiality of material during a time when that material has not been
designated Confidential, Highly Confidential, Attorneys’ & Experts’ Eyes Only, or
Outside Counsels’ & Experts’ Eyes Only Material.
2.3

Designation in conformity with this Protective Order requires:
(a)
For information in documentary form (apart from transcripts of
depositions or other pretrial or trial proceedings), if not already previously
designated with a legend by the Designating Party when such materials were
readied for production, or otherwise provided by agreement, the Designating
Party shall affix the legend “CONFIDENTIAL — SUBJECT TO PROTECTIVE
ORDER,” “HIGHLY CONFIDENTIAL —ATTORNEYS’ AND EXPERTS’
EYES ONLY — SUBJECT TO PROTECTIVE ORDER,” or “HIGHLY
CONFIDENTIAL — OUTSIDE COUNSEL AND EXPERTS’ EYES ONLY —
SUBJECT TO PROTECTIVE ORDER” at the bottom of each page that contains
Protected Material;
(b)
For written discovery responses, designation shall be made by means of a
statement in the answers or response specifying that the answers or responses or
specific parts thereof are designated Confidential Information, Highly
Confidential —Attorneys’ and Experts’ Eyes Only Information, or Highly
Confidential — Outside Counsel and Experts’ Eyes Only Information. The
Designating Party shall also affix the following legend on the front of any set of
interrogatory answers or responses to requests for admission containing Protected
Material: “CONTAINS CONFIDENTIAL INFORMATION [OR HIGHLY
CONFIDENTIAL –ATTORNEYS’ AND EXPERTS’ EYES ONLY
INFORMATION, OR HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
AND EXPERTS’ EYES ONLY INFORMATION] — SUBJECT TO
PROTECTIVE ORDER.”
3

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 44of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page of 14

(c)
For testimony given in deposition, the Designating Party shall designate a
transcript or any portion of the testimony that is Confidential Information, Highly
Confidential —Attorneys’ and Experts’ Eyes Only Information, and/or Highly
Confidential — Outside Counsel and Experts’ Eyes Only Information, in writing
on or before thirty (30) days after the final transcript is received. No person shall
be present during portions of the depositions designated Protected Material,
unless such person is authorized under the terms of this Protective Order to
receive Discovery Material containing such Protected Material or unless the
Designating Party consents to such person being present. Only those portions of
the testimony that are designated for protection in accordance with this section
shall be covered by the provisions of this Protective Order. The entire testimony
shall be deemed to have been designated as “Highly Confidential – Attorneys’
and Experts Eyes Only” until the time within which the transcript may be
designated has elapsed. If testimony is not designated within the prescribed time
period, then such testimony shall not be deemed Confidential or either level of
Highly Confidential Information except as ordered by the Court; and
(d)
For information produced in electronic or video format, and for any other
tangible items, if not already previously designated with a legend by the
Designating Party when such materials were readied for production, or otherwise
provided by agreement, the Designating Party shall affix in a prominent place on
the exterior of the container or containers in which the information or item is
stored the legend “CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER,”
“HIGHLY CONFIDENTIAL —ATTORNEYS’ AND EXPERTS’ EYES ONLY
— SUBJECT TO PROTECTIVE ORDER,” or “HIGHLY CONFIDENTIAL —
OUTSIDE COUNSEL AND EXPERTS’ EYES ONLY — SUBJECT TO
PROTECTIVE ORDER”
2.4
Nothing in this Protective Order constitutes an admission by any Party that the
Protected Material is relevant or admissible. Each Party reserves the right to object to the
use or admissibility of any Protected Material.
2.5
Protected Material may only be disclosed to the categories of persons identified in
Sections 4.2-4.4 below. Any person receiving Protected Material shall not reveal or
discuss such discovery material except for purposes of this litigation and subject to the
terms of this Protective Order.
3.

Scope and Duration
3.1
The protections conferred by this Protective Order cover all Discovery Material,
including Protected Material, and any information copied or extracted therefrom, as well
as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations,
or presentations by Parties or counsel to or in court or in other settings that might reveal
Protected Material. For the avoidance of doubt, the protections herein also cover both
experts and any consultants retained by counsel, including jury consultants, and other
consulting experts who may not ultimately produce written reports. However, with the
exception of the requirements in Section 3.4 below, this Protective Order shall not be
4

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 55of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page of 14

construed to cause any counsel to produce, return, and/or destroy its own attorney work
product, or the work product of their co-counsel.
3.2
Any Personally Identifying Information (“PII”) (e.g., Social Security numbers,
financial account numbers, passwords, and information of a kind susceptible to being
used for identity theft) exchanged in discovery shall be maintained by the Receiving
Party in a manner that is secure and confidential and shared only with authorized
individuals in a secure manner. The Producing Party may specify the minimal level of
protection expected in the storage and transfer of its information provided that such level
of protection is not greater than that reasonably used by the Producing Party for such
information in the ordinary course of the Producing Party’s business. In the event the
Receiving Party experiences a data breach, it shall immediately notify the Producing
Party of the same, and shall cooperate with the Producing Party to address and remedy
the breach, subject to the Producing Party’s reasonable instructions. Nothing herein shall
constitute a waiver of legal rights and defenses regarding the protection of PII from
unauthorized disclosure.
3.3
Nothing herein shall be deemed to waive any privilege or protection recognized
by law, or shall be deemed an admission as to the admissibility in evidence of anything
revealed in the course of discovery.
3.4
Unless otherwise ordered or agreed in writing by the Producing Party, within
sixty (60) days after the final termination of this action, including appeals, each
Receiving Party must destroy or return all Protected Material to the Producing Party,
including any information copied or extracted therefrom, all copies, excerpts, summaries,
or compilations thereof in any form (including email), and all testimony and written
reports (including exhibits) that have been so designated. Notwithstanding this provision,
the parties’ outside counsel shall be permitted to retain their working files and the parties
shall not be required to delete any emails off of backup archives maintained in the
ordinary course of their business on the condition that those files will remain protected –
any such files that contain or constitute Protected Material remain subject to this
Protective Order. For the avoidance of doubt, documents on the Parties’ email backup
systems may remain in the back-up archives only to the extent that they were properly
disclosed to persons authorized under Sections 4.2-4.4 of this Protective Order. In
addition, the parties’ experts may retain one copy of any expert report they prepared,
which also remains subject to this Protective Order.
3.5
This Protective Order shall continue to be binding after the conclusion of this
litigation except: (a) there shall be no restriction on Protected Material that are used as
exhibits in Court (unless such exhibits were filed under seal); and (b) a party may seek
the written permission of the Producing Party or further order of the Court with respect to
dissolution or modification of this Protective Order.
3.6
Nothing herein shall preclude the parties from disclosing Protected Material if
otherwise required by law or pursuant to a valid subpoena, provided that the Receiving
Party shall give prompt written notice to counsel for the Producing Party to the extent
permitted by law, and will allow the Producing Party an opportunity to oppose such
5

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 66of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page of 14

subpoena or demand or court order prior to the deadline for complying with the subpoena
or demand or court order. No compulsory disclosure to third parties of information or
material exchanged under this Protective Order shall be deemed a waiver of any claim of
confidentiality, except as expressly found by a court or judicial authority of competent
jurisdiction.
4.

ACCESS TO AND USE OF DISCOVERY MATERIAL
4.1

Basic Principles and Limitations on Use: A Receiving Party may use Discovery
Material only in connection with this litigation, captioned as SS&C Technologies
Holdings, Inc. and Advent Software, Inc. v. Arcesium LLC, Case No: 22-cv-2009
(VEC), including for prosecuting, defending, or attempting to settle it. A
Receiving Party may not use Discovery Material for any other reason, including,
but not limited to in connection with other litigation (including related actions)
unless the Producing Party agrees in writing. Protected Material may be disclosed
only to the categories or persons and under the conditions described in this
Protective Order. Protected Material must be stored and maintained by a
Receiving Party at a location and in a secure manner that ensures that access is
limited to the persons authorized under this Protective Order.

4.2
Disclosure of Confidential Information: Unless otherwise ordered by the Court or
permitted in writing by the Designating Party, a Receiving Party may disclose
Confidential Information only to:
(a) The Receiving Party’s outside counsel of record in this action as well as
employees of said outside counsel and in-house legal personnel to whom it is
reasonably necessary to disclose the information for this litigation;
(b) Current or former officers, directors, and employees of Parties to whom
disclosure is reasonably necessary for this litigation;
(c) The author, addressees, or recipients of the document, or individuals who are
specifically identified in the document, provided that no portion of the
information other than that which specifically relates to the individual shall
be disclosed to the individual, and the individual shall not be permitted to
possess or retain copies of such information;
(d) Witnesses in the action to whom disclosure is reasonably necessary for
purposes of depositions, hearing or trial in this litigation, provided that no
portion of the information other than that which is reasonably necessary for
the individual to review is disclosed to the witness and the witness shall not
be permitted to possess or retain copies of such information;
(e) Consultants or experts assisting in the prosecution or defense of the matter, to
the extent deemed necessary by counsel;
(f) Stenographers, their staff, and professional vendors to whom disclosure is
reasonably necessary for this litigation;
6

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 77of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page of 14

(g) Any other person to whom the Designating Party agrees in writing or on the
record can receive such information, and any other person as may be ordered
by the Court;
(h) Any arbitrator, mediator or other person who may be engaged by the parties
to assist in potential settlement of the case; and
(i) The Court, including court staff.
Prior to reviewing Confidential Information, any person in categories 4.2(a)-(h) shall sign
the undertaking attached hereto as Exhibit A, a copy of which shall be maintained by the
Receiving Party. Any review of Confidential Information by persons in categories
4.2(a)-(h) shall be subject to the terms of said undertaking, which are incorporated by
reference herein and shall be enforceable by order of this Court; except that if the person
is a witness and is testifying under oath, such person can be informed on the record of the
individual’s obligation to keep the information confidential and not to use it for any
purpose other than this litigation in lieu of signing Exhibit A.
4.3
Disclosure of Highly Confidential –Attorneys’ and Experts’ Eyes Only
Information: Unless otherwise ordered by the Court or permitted in writing by the
Designating Party, a Receiving Party may only disclose Highly Confidential—Attorneys’
and Experts’ Eyes Only Information to:
(a) The Receiving Party’s in-house legal personnel to whom it is reasonably
necessary to disclose the information for this litigation and the Receiving
Party’s outside counsel of record in this action as well as employees of said
outside counsel;
(b) Consultants or experts assisting in the prosecution or defense of the matter, to
the extent deemed necessary by counsel;
(c) The author, addressees, or recipients of the document, or individuals who are
specifically identified in the document, provided that no portion of the
information other than that which specifically relates to the individual shall
be disclosed to the individual, and the individual shall not be permitted to
possess or retain copies of such information;
(d) Current or former officers, directors, employees, and representatives of the
Producing Party when the officer, director, employee, or representative is
testifying at trial or deposition and when disclosure is reasonably necessary
at depositions or trial;
(e) Stenographers, their staff, and professional vendors to whom disclosure is
reasonably necessary for this litigation;
(f) Any arbitrator, mediator or other person who may be engaged by the parties
to assist in potential settlement of the case;
7

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 88of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page of 14

(g) Any other person to whom the Designating Party agrees in writing or on the
record can receive such information, and any other person as may be ordered
by the Court; and
(h) The Court, including court staff.
Prior to reviewing “Highly Confidential – Attorneys’ and Experts’ Eyes Only
Information,” any person in categories (4.3)(a) – (g) shall sign the undertaking attached
hereto as Exhibit A, a copy of which shall be maintained by the Receiving Party. Any
review of Highly Confidential –Attorneys’ and Experts’ Eyes Only Information shall be
subject to the terms of said undertaking, which are incorporated by reference herein and
shall be enforceable by order of this Court; except that if the person is a witness and is
testifying under oath, such person can be informed on the record of the individual’s
obligation to keep the information confidential and not to use it for any purpose other
than this litigation in lieu of signing Exhibit A.
4.4
Disclosure of Highly Confidential – Outside Counsel and Expert Eyes’ Only
Information: Unless otherwise ordered by the Court or permitted in writing by the
Designating Party, a Receiving Party may only disclose Highly Confidential—Outside
Counsel and Experts’ Eyes Only Information to:
(a) The Receiving Party’s outside counsel in this action as well as employees of
said counsel;
(b) Consultants or experts assisting in the prosecution or defense of the matter, to
the extent deemed necessary by counsel;
(c) The author, addressees, or recipients of the document, or individuals who are
specifically identified in the document, provided that no portion of the
information other than that which specifically relates to the individual shall
be disclosed to the individual, and the individual shall not be permitted to
possess or retain copies of such information;
(d) Current or former officers, directors, employees, and representatives of the
Producing Party when the officer, director, employee, or representative is
testifying at trial or deposition and when disclosure is reasonably necessary
at depositions or trial;
(e) Stenographers, their staff, and professional vendors to whom disclosure is
reasonably necessary for this litigation;
(f) Any arbitrator, mediator or other person who may be engaged by the parties
to assist in potential settlement of the case;
(g) Any other person to whom the Designating Party agrees in writing or on the
record can receive such information, and any other person as may be ordered
by the Court; and
8

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 99of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page of 14

(h) The Court, including court staff.
Prior to reviewing “Highly Confidential – Outside Counsel and Experts’ Eyes Only
Information,” any person in categories 4.4(a) – (g) shall sign the undertaking attached
hereto as Exhibit A, a copy of which shall be maintained by the Receiving Party. Any
review of Highly Confidential – Outside Counsel and Experts’ Eyes Only Information
shall be subject to the terms of said undertaking, which are incorporated by reference
herein and shall be enforceable by order of this Court; except that if the person is a
witness and is testifying under oath, such person can be informed on the record of the
individual’s obligation to keep the information confidential and not to use it for any
purpose other than this litigation in lieu of signing Exhibit A.
4.5
This Stipulation has no effect upon, and shall not apply to, a Producing Party’s
use of its own Discovery Material (i.e. what a Producing Party produced) for any
purpose. Nothing herein shall impose any restrictions on the use or disclosure by a Party
of Protected Material that has been obtained lawfully by such party independently of the
proceedings in this action or that becomes publicly available after the Confidentiality
designation through no fault or breach by the Receiving Party.
5.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
5.1
Timing of Challenges. Any Party may challenge a designation of confidentiality
at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary
economic burdens, or a significant disruption or delay of the litigation, a Party does not
waive its right to challenge a confidentiality designation by electing not to mount a
challenge promptly after the original designation is disclosed.
5.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution
process by providing written notice of each designation it is challenging and describing
the basis for each challenge. To avoid ambiguity as to whether a challenge has been
made, the written notice must recite that the challenge to confidentiality is being made in
accordance with this specific paragraph of the Protective Order. The parties shall attempt
to resolve each challenge in good faith and must begin the process by conferring directly
(in voice to voice dialogue; other forms of communication are not sufficient) within 10
days of the date of service of notice. 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
circumstances, and, if no change in designation is offered, to explain the basis for the
chosen designation. A Challenging Party may proceed to the next stage of the challenge
process only if it has engaged in this meet and confer process first or establishes that the
Designating Party is unwilling to participate in the meet and confer process in a timely
manner.
5.3
Judicial Intervention. If the Parties are unable to reach an agreement on
confidentiality designations, the Party challenging the confidentiality designation may
file and serve a motion that identifies the challenged material and sets forth in detail the
9

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 10 of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page 10 of 14

basis for the challenge within ten (10) days of completing the meet and confer process
outlined in Section 5.2.
6.

FILING OF PROTECTED MATERIAL AND USE AT HEARINGS
6.1
To the extent that any Protected Material is included or referenced in any
submissions to the Court, the filing party shall redact all Protected Material in materials
filed on the public docket and shall file unredacted versions under seal. This Protective
Order represents the Court’s approval for any such sealed filings.
6.2
A Party may, subject to the Federal Rules of Evidence and further Orders of the
Court, use any Protected Material for any purpose at any hearing before a judicial officer
in this litigation (and as specifically provided by Paragraph 6.1 herein), provided that
reasonable notice (except in unforeseen circumstances, at least 48 hours in advance) is
given to counsel for the party who designated the Protected Material, and provided
further that the Producing Party may at the time of such proposed use, and prior to the
disclosure of the Protected Material, move for an appropriate protective order. In
requiring reasonable notice of proposed use of Protected Material, this Protective Order
does not seek to require a separate notice procedure; rather, good faith compliance by any
party with this Court’s pre-hearing and/or pretrial requirements to disclose the documents
proposed for use at the hearing or trial and/or the filing of a pleading from which the
intent to use specific confidential information (referenced by bates number or other
specific designation) at trial or hearing is made clear shall constitute compliance with this
notice requirement. To the extent that the Producing Party is provided less than fortyeight (48) hours’ notice of the intent of another party to use Protected Material at trial or
hearing, this Court will afford such time as is reasonably necessary for the producing
party to confer with the appropriate person to determine the extent to which a protective
order may be necessary and to move for the same.

7.

THIRD PARTY PRODUCTIONS
7.1
The terms of this Protective Order shall be applicable to any third party who
produces information.
7.2
If a Party to this litigation determines that the information produced by a third
party contains the Party’s own confidential information: (a) for which special protection
is warranted and for which the third party should have designated the information as
Protected Material, but the third party failed to so designate, or (b) said third party was
obligated to keep confidential by agreement, then the Party may notify the other
Receiving Parties of the appropriate designations, and such designations shall govern
unless any of the Receiving Parties challenge such designations as set forth in Section 5
of this Protective Order.

8.

ATTORNEY RENDERING ADVICE
8.1
Nothing in this Protective Order will bar or otherwise restrict an attorney from
rendering advice to his or her client with respect to this matter or from relying upon or
generally referring to Protected Material in rendering such advice; provided however, that
10

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 11 of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page 11 of 14

in rendering such advice or in otherwise communicating with his or her client, the
attorney shall not reveal or disclose the specific content thereof if such disclosure is not
otherwise permitted under the Protective Order
9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
9.1
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Protective Order, the Receiving Party must immediately use its best efforts to retrieve all
copies of the Protected Material, inform the person or persons to whom unauthorized
disclosure was made of all the terms of this Protective Order, and request that such
person or persons execute the “Acknowledgment and Agreement to be Bound” that is
attached hereto as Exhibit A. The Receiving Party shall timely notify the Producing
Party of this unauthorized disclosure.

10.

INADVERTENT PRODUCTION OR COMMUNICATION
10.1 A Producing Party’s inadvertent disclosure in connection with this action of one
or more documents that such Producing Party believes constitute, contain, or reflect
information otherwise protected by the attorney-client privilege, the work product
doctrine or any other privilege or immunity from discovery (“Privileged Material”), shall
not constitute a waiver with respect to such Privileged Material or generally of such
privilege or immunity or the subject matter thereof.
10.2 In the event of alleged inadvertent disclosure of alleged Privileged Material, the
Producing Party may provide notice to the other Parties advising of the disclosure and
requesting return or destruction of the alleged Privileged Material. Upon such notice, the
Receiving Party shall make no further use of the alleged Privileged Material and shall
immediately destroy or segregate them in a manner that will prevent further disclosure or
dissemination of their contents, shall take reasonable steps to retrieve the alleged
Privileged Material if a Receiving Party disclosed it before being notified, and may
promptly present the alleged Privileged Material to the Court under seal for determination
of the privilege claim. Nothing in this provision is intended to modify the Parties’ rights
and obligations under Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure.
10.3 The production of any alleged Privileged Material in the circumstances described
in paragraphs 10.1 and 10.2 shall not constitute a waiver of the privilege or protection.
This Order shall be interpreted to provide the maximum protection allowed by Federal
Rule of Evidence 502(d).

11.

MISCELLANEOUS
11.1 Further Order of the Court: This Order may be changed by further order of this
Court. Further, nothing herein shall prejudice the rights of a party to move for relief from
any of its provisions, or to seek or agree to different or additional protection for any
particular material or information
11

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 12 of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page 12 of 14

11.2 Right to Assert Other Objections: By stipulating to the entry of this Protective
Order no Party waives any right it otherwise would have to object to disclosing or
producing any information or item on any ground not addressed in this Stipulated
Protective Order. Similarly, no Party waives any right to object on any ground to use in
evidence of any of the material covered by this Protective Order.
[remainder of page intentionally left blank]

12

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 13 of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page 13 of 14

SO STIPULATED AND AGREED.
SHEARMAN & STERLING LLP

DEBEVOISE & PLIMPTON LLP

By:
Stephen R. Fishbein
Stephen R. Fishbein
John A. Nathanson
Christopher LaVigne
599 Lexington Ave
New York, New York 10022
Telephone [phone]
Facsimile [phone]
Primary email:
[e-mail]
Primary email:
[e-mail]
Primary email:
[e-mail]
Secondary email:
[e-mail]

By:
James J. Pastore (on consent)
James J. Pastore
Megan K. Bannigan
919 Third Avenue
New York, NY 10022
[phone]
[e-mail]
[e-mail]
Of Counsel:
GORDON REES SCULLY
MANSUKHANI, LLP
Brian E. Middlebrook
Richard L. Green* (pro hac vice to be
sought)
One Battery Park Plaza
28th Floor
New York, NY 10004
[phone]
[e-mail]
[e-mail]
*Resident in Glastonbury, Connecticut
office

Counsel for Plaintiffs SS&C Technologies
Holdings, Inc. and Advent Software, Inc.

Counsel for Defendant Arcesium LLC
Notwithstanding anything to the contrary in this stipulation, the
parties must comply with the Undersigned's Individual Rules
in the event of a discovery dispute (see Rule 3(B)) or when
filing materials covered by the protective order (see Rule 5).
May
10
SO ORDERED this ___ day of ____________, 2022

______________________________
Hon. Valerie Caproni

13

Case 1:22-cv-02009-VEC Document 28-1 Filed 05/10/22 Page 14 of 14
Case 1:22-cv-02009-VEC Document 29 Filed 05/09/22 Page 14 of 14

Exhibit A
Undertaking
This Undertaking relates to SS&C Technologies Holdings, Inc. and Advent Software, Inc.
v. Arcesium LLC, Case No: 22-cv-2009 (VEC), a litigation pending in the United States District
Court for the Southern District of New York (the “Action” in the “Court”).
I have received and reviewed a copy of the Protective Order entered by the Court in the
Action. I understand that, in the course of the Action, certain discovery materials may be
disclosed to me that have been designated as Confidential Information, Highly Confidential—
Attorneys’ and Experts’ Eyes Only Information, or Highly Confidential—Outside Counsel and
Experts’ Eyes Only Information under the Protective Order (collectively, “Protected Material”).
I understand that any discovery materials so labeled are confidential by Order of the Court.
I understand the Protective Order and will comply with it. To the extent I am provided
with any Protected Material, I will use it only as allowed by the Protective Order.
At the conclusion of my involvement in this litigation, I will return all Protected Material
that has come into my possession, or I will certify via email to counsel that I have securely
destroyed the same.
I agree to the jurisdiction of this Court for the purpose of enforcement of the Protective
Order in this Action.
Signed:

_________________________________

14