Menchies Group, Inc. v. Massachusetts Bay Insurance Company et al

Filing 48

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED. (Signed by Judge Mary Kay Vyskocil on 11/14/2023) (tg)

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 11/14/2023

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MENCHIES GROUP, INC.,

Case No. 1: 22-cv-04237-MKV

Plaintiff,

PROTECTIVE ORDER

vs.
MASSACHUSETTS BAY INSURANCE
COMPANY and HOUSTON CASUALTY
COMPANY,
Defendants.

Pursuant to Fed. R. Civ. P. 26(c) and Fed. R. Civ. P. 502(d), the following Protective
Order is entered:
Definitions
1.

“Litigation” means the action captioned Menchies Group, Inc. v. Massachusetts

Bay Insurance Company and Houston Casualty Company., No. 1: 22-cv-04237-MKV, in the
United States District Court for the Southern District of New York.
2.

“Menchies” means Menchies Group, Inc.

3.

“HCC” means Houston Casualty Company.

4.

“Parties” means Menchies and HCC. Each of Menchies and HCC is a “Party” for

purposes of this Protective Order.
5.

“Discovery Request” means the use by a Party of any method provided for in the

Federal Rules of Civil Procedure for making a formal request for information from another Party
or third-party in connection with the Litigation, and includes (a) any formal document request,
(b) any formal interrogatory, (c) any formal request for admission, (d) any subpoena or subpoena
ducus tecum, any notice of deposition, and (f) any question asked during a deposition.

6.

“Discovery Response” means all information (including documents and

testimony) produced in response to any Discovery Request made in the Litigation, and includes
Documents produced, objections asserted (including any associated privilege log), or answers or
responses provided to any Discovery Request made in the Litigation.
7.

“Document” or “Documents” includes all handwritten, typed, printed, or recorded

matter (however produced or reproduced or stored); correspondence; letters; e-mail; any other
form of communication (agreed to by the Parties); drawings; blueprints; schedules, plans, graphs;
charts; photographs; videos; memoranda; facsimiles; records; summaries of personal
conversations or interviews; books; statements; transcripts; court records or filings; logs; legal
pleadings and papers; summaries or records of telephone conversations; diaries; journals; filings
or reports submitted to any governmental entity; statistical statements; work papers; work orders;
account records; bank records; bank statements; credit card statements or records; invoices;
receipts; agendas; minutes or records of meetings or conferences; consultant reports;
employment records; appraisals; agreements; reports or summaries of negotiations; brochures;
pamphlets; circulars; press releases; notes; lists; notices; surveys; advertising; all other sound
recordings (agreed to by the Parties), however produced or reproduced; files; tests; results; plans;
protocols; standards; calendars; logs; manuals; contracts; evaluations; and all data compilations
from which information can be obtained. This definition is intended to be and should be
construed to be at least as broad as the description of “document” appearing in Fed. R. Civ. P.
34(a). “Document” and “Documents” include all non-identical drafts and copies of the same
document and all information stored in electronic format including, for example, on or in online
data storage, databases, networks, computer systems, and servers.

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8.

“Privileged Information” means information, Discovery Responses, and

Documents protected by the attorney-client privilege, the work-product doctrine or protection, or
any other applicable privilege, protection, or immunity from discovery that otherwise would
apply in this or any other action, arbitration, mediation, or court or agency proceeding.
9.

“Protected Material” means information, Discovery Responses, and Documents

designated as “CONFIDENTIAL” in this Litigation.
Designation of Materials as “Confidential”
10.

Any Party may designate as “CONFIDENTIAL” any information, Discovery

Response, Documents, or any portions thereof, that it or a non-party discloses, produces,
transcripts, or files in this Litigation, and that the designating Party believes in good faith
contains confidential personal, trade secret, and/or commercial information, as those terms are
defined under applicable law. “CONFIDENTIAL” information, Discovery Responses, or
Documents shall not include those portions of the information, Discovery Responses, or
Documents that: (i) are or become generally available to the public other than as a result of
disclosure by a receiving Party; (ii) become available to a Party through disclosure outside the
Litigation; or (iii) were in the possession of a Party prior to disclosure in the Litigation. All
designations of material as confidential shall be made in good faith and not for the purpose of
obstructing the effective and efficient administration of justice.
11.

Such designation shall be made (1) by typing or stamping on the face of such

information, Discovery Responses, or Documents the words “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER ,” or (2) by otherwise designating information, Discovery Responses, or
Documents as “CONFIDENTIAL” prior to the production of the information, Discovery
Responses, or Documents in a manner that clearly advises that the information, Discovery

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Responses, or Documents are to be treated as “CONFIDENTIAL.” In the case of information or
documents produced by a non-party, the designation may be made by requesting that the nonparty’s information or Documents be stamped or identified in some other conspicuous and
practicable fashion, stating: “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER per
Designation of [Designating Party]”.
12.

In the event a Party does not designate as “CONFIDENTIAL” any information,

Discovery Responses, Documents, or portions thereof at the time such information, Discovery
Responses, Documents, or portion(s) thereof are disclosed, produced, or transcribed, such Party
has not waived its right to later designate said information, Discovery Responses, Documents, or
portions thereof as “CONFIDENTIAL,” provided the Party notifies the other Parties in writing
that such information, Discovery Responses, Documents, or portions thereof should have been
designated as “CONFIDENTIAL” and undertakes to provide the other Parties with the
information, Discovery Responses, Documents, or portions thereof that are being so designated
marked. .
13.

Any Documents or information produced by, or testimony given at a deposition

by, a non-party will be treated as confidential by all Parties for a period of fourteen (14) days
following the production of said Documents or information or following the deposition.
Thereafter, such Documents, information, and testimony shall not be considered confidential
unless so designated by a Party in accordance with Paragraph 11 to extend the 14-day period of
presumptive confidentiality.
14.

A Party does not waive its right to challenge a “CONFIDENTIAL” designation

by electing not to challenge it after the 14-day period in Paragraph 13 above or after the original
designation is disclosed.

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Challenging a “CONFIDENTIAL” Designation
15.

Any challenge to a Party’s “CONFIDENTIAL” designation must be preceded by

a conference call directly between counsel for the challenging Party and counsel for the Party
that made the designation, unless counsel for the designating Party unreasonably delays the call
from occurring, during which counsel for the respective Parties shall attempt, in good faith, to
resolve the designation issue(s).
16. If, after a good faith effort to resolve a “CONFIDENTIAL” designation issue, the
challenging Party elects to proceed with a challenge to the designation, the challenging Party
must, within twenty-one (21) days of the telephone conference with the designating Party, serve
in accordance with the federal and local rules a motion that identifies the challenged material (by
bates number, if applicable) and sets forth in detail the basis for the challenge. Until this Court
rules on the motion, the Parties shall treat the material as confidential. With respect to any
material that ceases to be protected under this Protective Order, the designating party shall, at its
expense, provide to each Party that so requests copies of the previously protected material from
which all confidentiality legends previously affixed have been removed.
17. This Protective Order is not intended to govern the use of “CONFIDENTIAL”
information, Discovery Responses, Documents, or testimony at any trial in the Litigation. Issues
relating to the use of “CONFIDENTIAL” information, Discovery Responses, Documents, and
testimony at trial will be resolved prior to the commencement of any trial.
18. Every person to whom “CONFIDENTIAL” information is disclosed, summarized,
described, characterized, or otherwise communicated or made available, in whole or in part, shall be
advised that the information is being disclosed pursuant and subject to the terms of this Stipulation
and Order and may not be disclosed or used for purposes other than those permitted hereunder. Each
such person shall maintain the “CONFIDENTIAL” information, or information derived therefrom,

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in a manner reasonably calculated to prevent unauthorized disclosure. Any Party issuing a subpoena
to a non-party shall enclose a copy of this Stipulation and Order and notify the non-party that the
protections of this Stipulation and Order are available to such nonparty. The Parties agree that the
production of any Discovery Material by any non-party shall be subject to and governed by the terms
of this Stipulation and Order.

Additional Restrictions
19.

Any party who requests still further limits on disclosure (such as “attorneys’ eyes

only” treatment in extraordinary circumstances), may at any time prior to the trial of this action
serve upon counsel for the designating person a written notice stating with particularity the
grounds of the request. If agreement cannot be reached promptly, counsel for all affected Parties
will convene a joint telephone call with the Court to obtain a ruling.
Filing and Service of Documents
20. In the event that any Protected Material is disclosed in or contained within any document that
any Party intends to file publicly in this Litigation, that Party shall notify the other Party and any
non-party that designated the Protected Material as Confidential three (3) business days in advance of
any such filing to afford the Parties opportunity to narrow the scope of any motion to seal. If it is not
practical for the Party to provide three (3) business days notice prior to filing a document containing
Protected Material in this Litigation, the Party may file the document including the Protected
Material with the Court, provided that all Protected Material in any publicly filed version of the
document shall be redacted or filed under seal in accordance with, and subject to, the Federal Rules
of Civil Procedure, any local rules of the Court and the Individual Rules and Practices of any judge
presiding over this Litigation. It shall be the burden of the Party who designated the Protected
Material as confidential to demonstrate to the Court that redaction or sealing is necessary and
narrowly tailored to maintain the confidential nature of the Protected Material. If the Court does not

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grant leave to file the Protected Material under seal, the Parties shall promptly meet and confer in
an effort to address how to best preserve the confidential status of the Protected Material. Under
no circumstances shall a non-filing Party thwart the meet and confer process to the detriment of
the filing Party or use any delay in the meet and confer process or the Court’s denial of the
motion to file under seal to argue that the filing party did not timely file its substantive,
procedural, or discovery motion or opposition thereto, or appropriately document the record in
support of its motion. If the Parties cannot resolve how to preserve the confidential status of the
designated information and/or Document during the meet and confer process, the filing Party
shall submit the matter to the Court for resolution of the confidentiality issue and/or to permit
consideration by the Court through in camera review of the Protected Material sought to be filed.
Confidentiality of Information Shared Among the Parties
21. All Protected Material shall be used solely for the purposes of the Litigation, including
any mediation, arbitration, or alternative dispute resolution process connected with the
Litigation, and in accordance with Paragraphs 23-24 herein. Except as authorized by: (a) the
provisions of Paragraphs 23-24 herein; (b) written permission of the Party that provided the
designated Protected Material; or (c) order of this Court, no Protected Material may be used for
any other purpose or outside the permitted scope of use according to its level of protection.
However, this Paragraph does not preclude use of any information or Documents possessed or
obtained by any Party outside of this Litigation merely because the information or Document has
been produced in this Litigation and has been marked “CONFIDENTIAL”.
22. Subject to the terms, conditions, and restrictions on this Order, “CONFIDENTIAL”
information, Discovery Responses, Documents, or testimony provided in the Litigation may be
disclosed only to the following persons:

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a.

The Parties and their respective counsel, including the members, partners,
associates, and paralegal and clerical staff of the law firms of said counsel;

b.

Any officer(s), employee(s), agent(s), claim manager(s), claim consultant(s),
auditor(s), or representative(s), parent(s) or affiliated company(ies) of the
Parties;

c.

Reinsurers, retrocessionaires, insurers, indemnitors, and accountants of the
Parties;

d.

This Court and any persons employed or appointed by this Court whose duties
require access to any information in connection with the Litigation;

e.

Any governmental or regulatory body as required by law;

f.

Any mediator, arbitrator, or provider of alternative dispute resolution services
retained by the Parties in connection with the Litigation;

g.

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

h.

Witnesses or potential witnesses in the Litigation, including any non-party
witnesses, who are not referred to in subparagraphs (a) or (b) above;

i.

Experts, consultants, and private investigators retained, specially employed, or
informally consulted by counsel concerning the subject matter of the
Litigation and their secretarial, clerical, or other employees who are assigned
to assist in the subject matter of the Litigation or for purposes of the retention,
employment, or consultation pertaining to the Litigation;

j.

Court reporters and other persons involved in recording deposition testimony
in the Litigation;

k.

Employees of copying services utilized with respect to the Litigation provided
they return the materials and all copies thereof to the Party utilizing the
service; and

l.

Litigation support vendors utilized with respect to the Litigation who are not
referred to within subparagraphs (i) or (k) above.

23. Prior to any disclosure of Protected Material to any person referred to in subparagraphs
22(h), 22(i), and 22(l) above, such person shall be provided by counsel with a copy of this
Protective Order and shall sign a Non-Disclosure Agreement in the form annexed as an Exhibit
hereto, stating that the person has read the Order and agrees to be bound by its terms. Said

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counsel shall retain each signed Non-Disclosure Agreement, and, upon request for good cause,
produce it to counsel for any requesting Party either prior to such person being permitted to
testify (at depositions or at trial) or at the conclusion of the case, except that non-testifying
experts and other witnesses not called at trial or for deposition need not be disclosed.
24. Within sixty (60) days after the conclusion of the Litigation, including the exhaustion of
all appeals, counsel for all Parties and third parties shall to the extent reasonably practicable
return all Protected Material (other than exhibits at the official court of record) to the designating
Party or shall use reasonable efforts to destroy the Protected Material. Reasonably practicable
steps to accomplish this will not be deemed to extend to the search, destruction, and/or alteration
of computer media (recognizing that when material is “deleted” from computer media it may still
be forensically recoverable until overwritten) or to the search, deletion, or alteration of backup
media retained by any recipient for disaster recovery purposes. To the extent that a party, its
counsel, experts, and/or consultants need to retain Protected Material for legitimate, ordinary
course of business reasons, it may do so, but the Protected Material shall remain subject to this
Order.
Privileged Information and Inadvertent Production of Privileged Information
25. If a Party discloses information in connection with the pending Litigation that the Party
thereafter claims to be Privileged Information, the disclosure of that Privileged Information will
not constitute or be deemed a waiver or forfeiture—in this or any other federal, state, arbitration,
or any other proceeding—of any claim of privilege or protection of any kind that the Producing
Party would otherwise be entitled to assert with respect to the Protected Information and its
subject matter.

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26. Upon discovery of the inadvertent production of Privileged Information, the producing
Party must notify the receiving Party in writing within five (5) business days after such discovery
that it has disclosed the Privileged Information without intending a waiver by the disclosure.
The notification shall include as specific an explanation as possible why the Privileged
Information is covered by the attorney-client privilege and/or any other applicable privilege
and/or constitutes work-product. Upon such notification, the receiving Party must—unless it
contests the claim of attorney-client privilege or other privilege or protection in accordance with
Paragraph 28—promptly notify the producing Party that it will take reasonable efforts to identify
and return, sequester or destroy (or in the case of electronically stored information, delete) the
Privileged Information and any reasonably accessible copies it has.
27. If the receiving Party contests the claim of attorney-client privilege or other privilege or
protection, the receiving Party must—within 30 days of receipt of the notification referenced in
Paragraph 27—move the Court for an Order finding that the material referenced in the
notification does not constitute Privileged Information. The Party shall request to file this
Motion under seal. The Motion cannot assert the fact or circumstance of the disclosure as a
ground for determining that the material does not constitute Privileged Information. Pending
resolution of the Motion, the receiving Party must not use the challenged information in any way
or disclose it to any person other than those required to be served with a copy of the sealed
Motion.
28. A receiving Party is under a good-faith obligation to notify the producing Party withing
five (5) business days upon identification of a document which reasonably appears on its face or
in light of facts known to the receiving Party to be potentially privileged. Such notification shall
not waive the receiving Party’s ability to subsequently challenge any assertion of privilege with

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respect to the identified document. Failure by the receiving Party to notify the producing Party
under this subsection where the receiving Party did not know and should not reasonably have
known that the document was inadvertently produced shall not be a violation of this Protective
Order. Subsequent to notification by the receiving Party, the producing Party shall provide notice
to the receiving Party within a reasonable time of notification if the producing Party believes the
document to be Privileged Information.
29. The Parties may stipulate to extend the time periods set forth in Paragraphs 27 and 28
without further approval of the Court.
30. The producing Party retains the burden—upon challenge pursuant to Paragraph 28—of
establishing the privileged or protected nature of the Privileged Information.
31. Nothing in this Protective Order limits the right of any party to petition the Court for an
in camera review of the Privileged Information.
32. The Parties anticipate that certain information might be produced in connection with the
claims and defenses raised by this action that might otherwise constitute Privileged Information.
Any such Privileged Information may be produced pursuant to the terms of this Protective Order
and, pursuant to Federal Rule of Evidence 502(d), such production shall not constitute a waiver
of any privilege or protection of the Privileged Information in connection with this or any other
federal or state proceeding.
General Provisions
33. Any summary, compilation, notes, electronic image, copy, or database containing
Protected Material shall be subject to this Protective Order to the same extent as the Protected
Material it contains or from which it derives.

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34. Nothing in this Protective Order restricts a Party’s use of its own information or
Documents produced as or in a Discovery Response. Nor shall this Protective Order bar counsel
from rendering advice to his or her client with respect to the Litigation and, in the course thereof,
referring to, relying on, or disclosing to any entity any information or Documents produced as a
Discovery Response, subject to the terms hereof.
35. This Protective Order may not be deemed a waiver by any Party of its rights to object to
any Discovery Request on any of the grounds provided for by the Federal Rules of Civil
Procedure or substantive law, including on grounds of confidentiality, or otherwise.
36. Any Party may apply for modification of this Protective Order upon reasonable notice to
all other Parties and after counsel for the Party seeking modification has contacted counsel for all
other Parties to attempt to resolve the issue through informal negotiation.
37. Absent a written agreement between or among all the Parties that have produced
Protected Material in the Litigation or further order of this Court, this Protective Order shall
survive the final disposition of the Litigation and will continue to be binding on all Parties.
38. In the event any individual or entity subject to the provisions of this Protective Order
shall violate or threaten to violate any provision of this Protective Order, any aggrieved Party or
non-party that produced or designated the Protected Material at issue may immediately apply to
this Court to obtain injunctive relief against any person violating or threatening to violate any
terms of this Protective Order and, in the event the aggrieved person shall do so, the respondent
person subject to the provisions of this Protective Order shall not assert as a defense the claim
that the aggrieved person possesses an adequate remedy at law.
39. In the event any person or entity not authorized by this Protective Order to receive
Protected Material seeks disclosure of Protected Material from a Party through lawful subpoena,

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demand by governmental authority, or other legal process, the Party receiving that subpoena,
demand, or legal process shall immediately notify by (i) e-mail and (ii) overnight mail or hand
delivery the Party that produced or designated the Protected Material as to which disclosure is
sought. Provided that notice is properly sent to a Party that produced or designated the Protected
Material, it will be that Party’s responsibility to object to or contest the subpoena, demand, or
legal process. The Party receiving the subpoena shall not produce the Protected Material until
the Party that produced or designated the Protected Material has had reasonable time to take
appropriate steps to protect the material. It shall be the responsibility of the Party that produced
or designated the protected material to obtain relief from the subpoena or order prior to the due
date for compliance. To give the Party that produced or designated the Protected Material an
opportunity to obtain such relief, the Party from whom such Protected Material is sought shall
not make the disclosure before the actual due date of compliance set forth in the subpoena or
order, unless the Party that produced or designated the Protected Material waives compliance
with this Protective Order prior to the due date.
40. Any communications in connection with or required by this Protective Order shall be
made to counsel of record for the Party.
41. This Court retains jurisdiction over all Parties and their counsel in the Litigation for
purposes of contempt proceedings or any other proceedings arising from any violation of this
Protective Order.
SO STIPULATED AND AGREED.
Dated: November 3, 2023
/s/ John N. Ellison
John N. Ellison
Anthony B. Crawford
599 Lexington Avenue

/s/ Daniel McNeel Lane, Jr.
Daniel McNeel Lane, Jr.
300 Convent Street, Suite 2200
San Antonio, Texas 78205

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New York, NY 10022
[e-mail]
[e-mail]
[phone]

Tel.: [phone]
[e-mail]

Attorneys for Plaintiffs, Menchies Group, Inc.

Attorney for Defendant,
Houston Casualty Company

14 2023
Dated: November ____,

SO ORDERED:

MARY KAY VYSKOCIL
United States District Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MENCHIES GROUP, INC.,
Plaintiff,

Case No. 1: 22-cv-04237-MKV
NON-DISCLOSURE AGREEMENT

vs.
MASSACHUSETTS BAY INSURANCE
COMPANY and HOUSTON CASUALTY
COMPANY,
Defendants.

I, __________________________________________, acknowledge that I have read and
understand the Protective Order in this action governing the non-disclosure of Protected Material
that have been designated as “CONFIDENTIAL.” I agree that I will not disclose such Protected
Material to anyone other than for purposes of this Litigation and that at the conclusion of this
Litigation I will delete all Protected Material or return it to the Party or counsel from whom I
received it. By acknowledging these obligations under the Protective Order, I understand that I
am submitting myself to the jurisdiction of the United States District Court for the Southern
District of New York for the purpose of any issue or dispute arising hereunder and that my
willful violation of any term of the Protective Order could subject me to punishment for
contempt of Court.
Dated: