Rodriguez v. GB Lodging, LLC et al

Filing 35

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO STIPULATED AND AGREED. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 11/15/2023) (jca)

Case 1:22-cv-04370-NRB Document 34 Filed 11/14/23 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------:
DIONIS RODRIGUEZ,
:
:
Plaintiff,
:
:
v.
:
:
GB LODGING, LLC; ANOLAG JACPOT 2
:
JV, LLC; GFI CAPITAL RESOURCES GROUP, :
INC.; GFI CAPITAL HOLDINGS, LLC; ALLEN :
I. GROSS; and BRUCE BLUM,
:
:
Defendants.
:
---------------------------------------------------------------:

Civil Action No. 1:22-cv-04370-NRB

STIPULATED CONFIDENTIALITY
AGREEMENT AND [PROPOSED] PROTECTIVE ORDER
NAOMI REICE BUCHWALD, United States District Judge:
WHEREAS, all the parties to this action (collectively the “Parties” and individually a
“Party”) request that this Court issue a protective order pursuant to Federal Rule of Civil Procedure
26(c) to protect the confidentiality of nonpublic and competitively sensitive information that they
may need to disclose in connection with discovery in this action;
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds good cause exists for issuance of an appropriately tailored
confidentiality order governing the pretrial phase of this action,
IT IS HEREBY ORDERED that any person subject to this Order – including without
limitation the Parties to this action (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 — will adhere to the following terms, upon pain of contempt:

Case 1:22-cv-04370-NRB Document 34 Filed 11/14/23 Page 2 of 10

1.

With respect to “Discovery Material” (i.e., information of any kind produced or

disclosed in the course of discovery in this action) that a person has designated as “Confidential”
pursuant to this Order, no person subject to this Order may disclose such Confidential Discovery
Material to anyone else except as this Order expressly permits.
2.

The Party or person producing or disclosing Discovery Material (“Producing

Party”) may designate as Confidential only the portion of such material the public disclosure of
which is either restricted by law or will cause harm to the business, commercial, financial or
personal interests of the Producing Party and/or third party and that it reasonably and in good faith
believes consists of:
(a)

previously non-disclosed financial information (including without limitation
profitability reports or estimates, percentage fees, design fees, royalty rates,
minimum guarantee payments, sales reports, and sale margins);

(b)

previously non-disclosed material relating to ownership or control of any nonpublic company;

(c)

previously non-disclosed business plans, product-development information, or
marketing plans;

(d)

any information of a personal or intimate nature regarding any individual; or

(e)

any other category of information this Court subsequently affords confidential
status.

3.

With respect to the Confidential portion of any Discovery Material other than

deposition transcripts and exhibits, the Producing Party or its counsel may designate such portion
as “Confidential” by: (a) stamping or otherwise clearly marking as “Confidential” the protected

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portion in a manner that will not interfere with legibility or audibility; and (b) producing for future
public use another copy of said Discovery Material with the confidential information redacted.
4.

A Producing Party or its counsel may designate deposition exhibits or portions of

deposition transcripts as Confidential Discovery Material 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 30 days after receipt of the transcript, 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 Producing Party or that person’s counsel.
During the 30-day period following a deposition, all Parties will treat the entire deposition
transcript as if it had been designated Confidential.
5.

If at any time before the trial of this action 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, this Court and all persons subject to this Order will treat such
designated portion(s) of the Discovery Material as Confidential.
6.

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, testimony, or other evidence.
7.

Where a Producing Party has designated Discovery Material as Confidential, other

persons subject to this Order may disclose such information only to the following persons:

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Case 1:22-cv-04370-NRB Document 34 Filed 11/14/23 Page 4 of 10

(a)

the Parties to this action, their insurers, and counsel to their insurers;

(b)

counsel retained specifically for this action, including any paralegal, clerical, or
other assistant that such outside counsel employs and assigns to this matter;

(c)

outside vendors or service providers (such as copy-service providers and documentmanagement consultants) that counsel hire and assign to this matter;

(d)

any mediator or arbitrator that the Parties engage in this matter or that this Court
appoints, provided such person has first executed a Non-Disclosure Agreement in
the form annexed as an Exhibit hereto;

(e)

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

(f)

any witness who counsel for a Party in good faith believes may be called to testify
at trial or deposition in this action, provided such person has first executed a NonDisclosure Agreement in the form annexed as an Exhibit hereto;

(g)

any person a Party retains to serve as an expert witness or otherwise provide
specialized advice to counsel in connection with this action, provided such person
has first executed a Non-Disclosure Agreement in the form annexed as an Exhibit
hereto;

(h)

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

(i)

this Court, including any appellate court, its support personnel, and court reporters.

8.

Before disclosing any Confidential Discovery Material to any person referred to in

subparagraphs 7(d), 7(f), or 7(g) above, counsel must provide a copy of this Order to such person,
who must sign a Non-Disclosure Agreement in the form annexed as an Exhibit hereto stating that

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Case 1:22-cv-04370-NRB Document 34 Filed 11/14/23 Page 5 of 10

he or she has read this Order and agrees to be bound by its terms. Said counsel must retain each
signed Non-Disclosure Agreement, hold it in escrow, and produce it to opposing counsel either
before such person is permitted to testify (at deposition or trial) or at the conclusion of the case,
whichever comes first.
9.

In accordance with Section 2(H) of this Court’s Individual Practices, motions or

letter motions for approval of sealed or redacted filings in this action and the subject documents,
including the proposed sealed document(s), must be filed electronically through the Court’s ECF
system in conformity with the Court’s standing order, 19-mc-00583, and ECF Rules &
Instructions, section 6. Contemporaneously with the electronic filings, counsel shall mail courtesy
copies to Chambers.
10.

The Court 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. All
persons are hereby placed on notice that the Court is unlikely to seal or otherwise afford
confidential treatment to any Discovery Material introduced in evidence at trial, even if such
material has previously been sealed or designated as Confidential.
11.

In filing Confidential Discovery Material with this Court, or filing portions of any

pleadings, motions, or other papers that disclose such Confidential Discovery Material
(“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.

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Case 1:22-cv-04370-NRB Document 34 Filed 11/14/23 Page 6 of 10

12.

Any Party who objects to any designation of confidentiality may at any time before

the trial of this action serve upon counsel for the Producing Party a written notice stating with
particularity the grounds of the objection. If the Parties cannot reach agreement promptly, counsel
for all affected Parties will address their dispute to this Court in accordance with Section 2(B) of
this Court’s Individual Practices.
13.

Any Party who requests additional limits on disclosure (such as “attorneys’ eyes

only” in extraordinary circumstances), may at any time before the trial of this action serve upon
counsel for the recipient Parties a written notice stating with particularity the grounds of the
request. If the Parties cannot reach agreement promptly, counsel for all affected Parties will address
their dispute to this Court in accordance with Section 2(B) of this Court’s Individual Practices.
14.

Recipients of Confidential Discovery Material under this Order may use such

material solely for the prosecution and defense of this action and any appeals thereto, and not for
any business, commercial, or competitive purpose or in any other litigation proceeding. Nothing
contained in this Order, however, will affect or restrict the rights of any Party with respect to its
own documents or information produced in this action.
15.

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

Discovery Material in its possession in response to a lawful subpoena or other compulsory process,
or if required to produce by law or by any government agency having jurisdiction, provided that
such Party gives written notice to the Producing Party as soon as reasonably possible, and if
permitted by the time allowed under the request, at least 10 days before any disclosure. Upon
receiving such notice, the Producing Party will bear the burden to oppose compliance with the
subpoena, other compulsory process, or other legal notice if the Producing Party deems it
appropriate to do so.

6

Case 1:22-cv-04370-NRB Document 34 Filed 11/14/23 Page 7 of 10

16.

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.
17.

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.
18.

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

shall, within five 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.
19.

Within five 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.
20.

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.
21.

The disclosing 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.
22.

Within 60 days of the final disposition of this action – including all appeals – all

recipients of Confidential Discovery Material must either return it – including all copies thereof –

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Case 1:22-cv-04370-NRB Document 34 Filed 11/14/23 Page 8 of 10

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. Notwithstanding this provision, the
attorneys that the Parties have specifically retained for this action may retain an archival copy of
all pleadings, motion papers, transcripts, expert reports, legal memoranda, correspondence, or
attorney work product, even if such materials contain Confidential Discovery Material. Any such
archival copies that contain or constitute Confidential Discovery Material remain subject to this
Order.
23.

This Order will survive the termination of the litigation and will continue to be

binding upon all persons to whom Confidential Discovery Material is produced or disclosed.
24.

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.

8

Case 1:22-cv-04370-NRB Document 34 Filed 11/14/23 Page 9 of 10

SO STIPULATED AND AGREED:

S/ James W. Fribley
James W. Fribley (5564984)
HUTH REYNOLDS LLP

S/ Karen L. Weiss (with permission)
Karen L. Weiss (KW0766)
LEVITT LLP

Counsel for Plaintiff

Counsel for Defendants

Dated: November 14, 2023

Dated: November 14, 2023

SO ORDERED.
Dated: November 15, 2023
New York, New York

NAOMI REICE BUCHWALD
United States District Judge

9

Case 1:22-cv-04370-NRB Document 34 Filed 11/14/23 Page 10 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------:
DIONIS RODRIGUEZ,
:
:
Plaintiff,
:
:
v.
:
:
GB LODGING, LLC; ANOLAG JACPOT 2
:
JV, LLC; GFI CAPITAL RESOURCES GROUP, :
INC.; GFI CAPITAL HOLDINGS, LLC; ALLEN :
I. GROSS; and BRUCE BLUM,
:
:
Defendants.
:
---------------------------------------------------------------:

Civil Action No. 1:22-cv-04370

NON-DISCLOSURE AGREEMENT
I,

, acknowledge that I have read and understand the

Protective Order in this action governing the non-disclosure of those portions of Discovery
Material that have been designated as Confidential. I agree that I will not disclose such
Confidential Discovery Material to anyone other than for purposes of this litigation and that at
the conclusion of the litigation I will either return all discovery information to the Party or
attorney from whom I received it. 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: