Loomis Sayles Trust Company LLC v. Citigroup Global Markets Inc

Filing 40

STIPULATION AND PROTECTIVE ORDER FOR CONFIDENTIAL INFORMATION:...regarding procedures to be followed that shall govern the handling of confidential material. The parties are advised that the Court retains discretion as to whether to afford confidential treatment to sealed or redacted information in Orders and Opinions. SO ORDERED. (Signed by Judge Lorna G. Schofield on 11/21/2022) (ama)

Case 1:22-cv-06706-LGS Document 40 Filed 11/21/22 Page 1 of 16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
________________________________________
)
LOOMIS SAYLES TRUST COMPANY, LLC, )
individually and on behalf of all others similarly )
situated,
)
)
Plaintiff,
)
)
v.
)
)
CITIGROUP GLOBAL MARKETS INC.
)
)
)
Defendant.
)
)

Civil Case No. 22-cv-6706-LGS

xxxxxxxxxxxxx PROTECTIVE ORDER
STIPULATION AND [PROPOSED]
FOR CONFIDENTIAL INFORMATION
Pursuant to Federal Rule of Civil Procedure 26 and Federal Rules of Evidence 502(d) and
(e), plaintiff Loomis Sayles Trust Company, LLC and defendant Citigroup Global Markets Inc.,
both of whom are named parties to this action (the “Lawsuit”), by and through their respective
attorneys, Foley Hoag LLP and Cravath, Swaine & Moore LLP, hereby stipulate and agree that:
1.

The undersigned parties recognize that proprietary and/or confidential business,

personal, or financial information, and other matters which could cause competitive or personal
injury or damages if such information were disclosed, may be revealed during discovery and in
documents produced, deposition testimony, answers to interrogatories, responses to requests for
admission, or any other information produced by or on behalf of any party to this Lawsuit or third
party (the “Producing Party”)1 in response to discovery conducted in this case, and in any
motions, briefs or other filings with the Court attaching and/or incorporating such information.

1

The term “third party” shall include any non-parties from whom discovery is sought or
obtained in this Lawsuit.

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Therefore, the undersigned parties hereby stipulate and agree that such “Protected
Information” (as hereinafter defined) may be identified by any party or third party and disclosed
only under the terms and conditions set forth herein. The undersigned parties further stipulate and
agree that this Stipulation and Order is intended to expedite and simplify the discovery process,
and that the proprietary and/or confidential nature of any document shall not constitute grounds
for withholding such document, although such Protected Information may be designated as
“Confidential” or “Confidential -- Attorneys Eyes Only” hereunder.
2.

As used herein, “Protected Information” is defined as follows:
(a)

With respect to documents, the portions of any document produced by any
party or third party that have been stamped with the word “Confidential,” or
the words “Confidential -- Attorneys Eyes Only,” or otherwise designated
confidential by the Producing Party or, with respect to documents produced
by third parties, by any party (including all copies, excerpts or summaries
thereof or therefrom);

(b)

With respect to deposition testimony, any testimony which is designated
as “Confidential” or “Confidential -- Attorneys Eyes Only” by a party or
third party or its attorney during the course of the deposition or within
thirty (30) days of receipt of the official, hard-copy or electronic deposition
transcript (which designations may include any transcripts, excerpts or
summaries thereof or therefrom, and exhibits thereto) (the
“Transcript Designation Deadline”), provided that the entirety of each
deposition transcript shall be treated as Confidential -- Attorneys Eyes
Only unless otherwise agreed until the expiration of the Transcript
Designation Deadline;
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(c)

With respect to any answers to interrogatories or responses to requests for
admission, any information stamped with the word “Confidential,” or the
words “Confidential -- Attorneys Eyes Only,” or otherwise designated
confidential by any party or third party;

(d)

With respect to briefs and other submissions to this Court, any brief or
other submission to this Court marked “Confidential” or “Confidential -Attorneys Eyes Only;”

(e)

For such information produced in a form other than hard-copy documents
(including, for example, electronic media) the Producing Party must affix
in a prominent place on the exterior of the media a label or sticker stating
the confidentiality designation; and

(f)

A Party or Non-Party that makes original documents or materials available
for inspection need not designate them for protection until after the
inspecting party has indicated which material it would like copied and
produced. During the inspection and before the designation, all of the
material made available for inspection shall be deemed “Confidential” or
“Confidential -- Attorneys Eyes Only”. After the inspecting Party has
identified the documents it wants copied and produced, the Producing
Party must determine which documents qualify for protection under this
Stipulation and Order. Then, before producing the specified documents,
the Producing Party must affix the appropriate legend (“Confidential” or
“Confidential -- Attorneys Eyes Only”) as set forth in the preceding
paragraphs.
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3.

Protected Information may be designated as “Confidential” if the Protected

Information concerns or constitutes (a) confidential business, financial, or personal information;
(b) trade secret, proprietary or other confidential research, development, financial, scientific,
technical, or commercial information, and/or (c) any information, the disclosure of which,
absent this Stipulation and Order, could constitute a violation of any other person or entity’s
right of privacy or otherwise violate an obligation of confidentiality that a party or third party
owes to another person or entity. Protected Information designated as “Confidential” may be
disclosed without the consent of the Producing Party or an Order of the Court, only as follows:
(a)

Officers, directors, and employees (including in-house counsel) of the
receiving party, to whom disclosure is reasonably necessary because they
either have responsibility for making decisions dealing directly with the
litigation in this action or are assisting in the prosecution, defense, or
appeal of this Lawsuit;

(b)

To any person who, from the face of the document, appears to have
authored or received a copy of the document designated
“Confidential” or other person who otherwise possessed or knew
the Protected Information contained therein;

(c)

To the undersigned parties’ attorneys of record in the Lawsuit, including
persons regularly employed by or associated with such attorneys, such as
administrative assistants and paralegals, who are assisting in this
Lawsuit;

(d)

Subject to the requirement of paragraph 8 infra, to persons retained by an
undersigned party or counsel thereto to assist in the preparation of the
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Lawsuit, including without limitation consulting or testifying experts, to
whom disclosure is reasonably necessary for this litigation;
(e)

Subject to the requirement of paragraph 8 infra, to persons expressly
agreed to in writing by the Producing Party in accordance with the
provisions of paragraph 14 infra;

(f)

Subject to the requirement of paragraph 8 infra, any witness who
counsel for a Party in good faith believes may be called to testify at trial
or deposition in this action to whom disclosure is reasonably necessary
and only for the purpose of assisting the preparation or examination of
the witness, provided such person does not retain any copies of
materials designated as “Confidential”;

(g)

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

(h)

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

(i)
4.

To any mediators engaged by the parties, and their support staff.

Protected Information may be designated as “Confidential -- Attorneys Eyes

Only” if the Protected Information concerns or constitutes sensitive issues of corporate planning,
business strategy, or industry competition, and the Producing Party determines that disclosure
of the Protected Information to one or more of the parties may create a substantial risk of serious
harm or damage to any party or third party. Protected Information designated as “Confidential -Attorneys Eyes Only” may be disclosed without the consent of the Producing Party or an order of
the Court, only as follows:
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(a)

To in-house attorneys of the undersigned parties to whom disclosure is
reasonably necessary for this litigation;

(b)

To the undersigned parties’ attorneys of record in this Lawsuit, including
persons regularly employed by or associated with such attorneys, such as
administrative assistants and paralegals who are assisting in this Lawsuit;

(c)

To any person who, from the face of the document, appears to have
authored or received a copy of the document designated “Confidential -Attorneys Eyes Only”;

(d)

Subject to the requirement of paragraph 8 infra, to persons retained by an
undersigned party or counsel thereto to assist in the preparation of this
Lawsuit, including consulting or testifying experts to whom disclosure is
reasonably necessary for this litigation;

(e)

Subject to the requirement of paragraph 8 infra, to persons expressly
agreed to in writing by the Producing Party in accordance with the
provisions of paragraph 14 infra;

(f)

Subject to the requirement of paragraph 8 infra, any witness who counsel
for a Party in good faith believes may be called to testify at trial or
deposition in this action to whom disclosure is reasonably necessary and
only for the purpose of assisting the preparation or examination of the
witness, provided such person does not retain any copies of materials
designated as “Confidential -- Attorneys Eyes Only”;

(g)

To this Court, including any appellate court, its support personnel, and
court reporters;
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(h)

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

(i)
5.

To any mediators engaged by the parties, and their support staff.

Except as otherwise set forth herein, Protected Information shall under no

circumstances be disclosed to any person or entity other than those specifically identified in
paragraphs 3 and 4 supra and pursuant to paragraph 8 infra. Notwithstanding anything in this
Stipulation and Order to the contrary, in the event other parties are added to the Lawsuit, neither
the newly-added parties nor their attorneys shall receive Protected Information absent the express
written consent of the undersigned parties.
6.

Protected Information produced by a Producing Party may only be used by a party

receiving it for the purpose of this Lawsuit and for no other purpose.
7.

Protected Information may include, but is not limited to, trade secrets or other

confidential research, development, commercial non-public business or financial information, or
personal information of the Producing Party or its employees, officers, directors, elected or
appointed officials, agents, representatives, or clients, and any information that is otherwise
entitled to protective treatment under Federal Rule of Civil Procedure 26(c)(1). This Stipulation
and Order shall not apply to any documents, or information contained therein, that are available
publicly, unless the documents, or information contained therein, have been made publicly
available through a violation of this Order. Nothing in this Stipulation and Order shall limit the
right of a party to use documents or information obtained from any source independent of either
production by a party to this litigation or production by a third party pursuant to a subpoena in
this litigation, but only if the source obtained the information lawfully while under no obligation
of confidentiality to the Producing Party.
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8.

Notwithstanding anything in this Stipulation and Order to the contrary, persons to

whom access to Protected Information designated by another party or third party is provided
pursuant to paragraphs 3(d), 3(e), 3(f), 4(d), 4(e) or 4(f) supra, or paragraph 14 infra, shall, prior
to gaining access to such Protected Information, review this Stipulation and Order and shall
execute an Acknowledgement of Stipulation and Order in the form of Exhibit A. Counsel
obtaining an executed copy of Exhibit A shall retain the original until the conclusion of this
action, including any and all appeals and shall provide copies of same to the other party(ies)
upon request.
9.

Protected Information shall at all times during the Lawsuit be maintained in the

utmost confidentiality. Upon conclusion of this Lawsuit (including all appeals thereof), Protected
Information shall be destroyed or returned to the Producing Party (along with all copies, excerpts
or summaries thereof or therefrom) within 60 days of the entry of final judgment, including all
appeals. A party shall certify to the destruction or return of Protected Information at the request of
the Producing Party. Nothing in this paragraph, however, shall preclude counsel from retaining
pleadings, transcripts, exhibits, responses, notes and memoranda, and other material archived as
part of their case and client files. Any such archived materials that contain or constitute
Protected Information shall remain subject to this Stipulation and Order.
10.

Protected Information (regardless of how it is communicated) including, but not

limited to, all documents, testimony (deposition or otherwise), or other material that refers, reflects
or otherwise discusses Protected Information, shall not be used, directly or indirectly, by any
person, including experts, for any business, commercial or competitive purpose, or for any purpose
whatsoever other than the litigation, preparation, trial and appeal of this Lawsuit.

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11.

Nothing herein shall be deemed to restrict in any way any party or its attorneys

with respect to its own documents.
12.

In the event that any party objects to the characterization of any information as

Protected Information (the “Challenging Party”), it shall first attempt to seek prompt resolution of
the dispute informally with the Producing Party. The Challenging Party shall initiate the dispute
resolution process by providing written notice to the Producing Party 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 Stipulation and 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 14
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 Producing
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. In the event
the dispute remains unresolved, the objecting party may submit such dispute to the Court for
resolution pursuant to Rule III.C.3 of Judge Schofield’s Individual Rules and Procedures (“Judge
Schofield’s Rules”). Protected Information that is subject to a dispute as to the degree of
disclosure allowed or as to whether it is in fact properly designated as “Confidential” or
“Confidential -- Attorneys Eyes Only”, shall, until further order of the Court, be treated as
“Confidential” or “Confidential -- Attorneys Eyes Only,” as the case may be, in accordance with
the provisions of this Stipulation and Order notwithstanding the existence of such dispute.
13.

Nothing in this Stipulation and Order shall bar or otherwise restrict any attorney
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from rendering advice to his or her client with respect to the Lawsuit and, in the course thereof,
from generally referring to or relying upon his or her examination of Protected Information.
14.

Any party who desires to disclose Protected Information to an individual other

than those set forth in paragraphs 3 and 4 supra (the “Requesting Party”) shall make said request
to the Producing Party and thereafter, the Requesting and Producing Parties, through their
attorneys of record, shall meet and confer (by telephone or otherwise) to attempt to resolve the
request. Any resolution shall be set forth in writing and signed by both the Requesting Party and
the Producing Party. In the alternative, the request and agreement may be set forth in the
transcript of a deposition taken in this action. In the event the dispute is unresolved, the
Requesting Party may seek appropriate relief from the Court in accordance with the procedures
and deadlines set forth in paragraph 12 supra.
15.

If an undersigned party submits designated Protected Information to the Court,

such information may be filed under seal only as provided in Rules I.D.2 and I.D.3 of Judge
Schofield’s Rules, and the Local Rules of the United States District Courts for the Southern and
Eastern Districts of New York (the “Local Rules”).
16.

If an undersigned party intends to disclose designated Protected Information in

court at any pretrial hearing open to the public, or at trial, the issues of whether and to what
extent any such disclosure may be made shall be governed by applicable law or order of the
Court. The party intending to disclose designated Protected Information in such instance shall
confer with the other party/parties and, to the extent resolution is not reached, seek, to the extent
permissible under applicable law, court rules, and court orders, to maintain the confidentiality of
the designated Protected Information or, with advance notice to the other party/parties and an
opportunity to be heard, request Court leave to so disclose free of such designation.
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17.

No party or third party shall make or permit the making of more copies of any

Protected Information than are reasonably necessary for the conduct of the Lawsuit.
18.

In the event anyone covered or bound by this Stipulation and Order (a) is

subpoenaed in another action, or (b) is served with a demand in another action to which he, she
or it is a party, or (c) is served with any other legal process by one not a party to this litigation,
seeking Protected Information which was produced or designated as “Confidential” or
“Confidential -- Attorneys Eyes Only,” that person or party shall (a) give prompt written
notice of such 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; and (b) promptly notify
in writing the party who caused the subpoena or order to be issued in the other litigation that
some or all of the material covered by the subpoena or order is subject to this Stipulation and
Order. Such notification shall include a copy of this Stipulation and Order. A person or party
subpoenaed or served with the demand or other process shall be obligated to cooperate with the
Producing Party to the extent necessary for the Producing Party to preserve the confidentiality
of the Protected Information. If the Producing Party timely seeks a protective order, the Party
served with the subpoena or court order shall not produce any information designated in this
action as “Confidential” or “Confidential -- Attorneys Eyes Only” before a determination by
the Court from which the subpoena or order is issued, unless the Party has obtained the
Producing Party’s permission. Nothing herein shall be construed as requiring the responding
party or anyone else covered or bound by this Stipulation and Order to challenge or appeal any
order requiring production of Protected Information or to subject itself to any penalties for
noncompliance with any legal process or order.
19.

The Stipulation and Order shall survive the final conclusion of the Lawsuit and
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shall continue in full force and effect.
20.

Nothing contained in this Stipulation and Order or any designation of

confidentiality hereunder or any failure to make such designation shall be used or
characterized by any party as an “admission” by a party or party opponent. Further, any
party shall have the right to seek judicial relief from this Stipulation and Order, including
without limitation the entry of an order modifying this Stipulation and Order or terminating a
party’s obligation to comply with all or any of its terms. Any party seeking such judicial
relief shall bear the burden of proof.
21.

Inadvertent failure to designate information as Protected Information at the

time of production may be remedied by supplemental written notice given by the Producing
Party at any time before the termination of this Lawsuit. Upon receipt of such notification, all
documents, materials, or testimony so designated or re-designated shall be fully subject to this
Stipulation and Order as if they had been initially so designated; provided, however, that the
receiving party shall incur no liability for any previous treatment of such information in
conformance with its original designation.
22.

Each person who has access to Protected Information designated as

“Confidential” or “Confidential -- Attorneys’ Eyes Only” pursuant to this Stipulation and
Order must take all due precautions to prevent the unauthorized or inadvertent disclosure of
such materials.
23.

In the event of a disclosure of any Protected Information to a person not

authorized to have had such disclosure made to them under this Order, and in the event the
party responsible for having made or allowed such disclosure becomes aware of such
disclosure, that party shall immediately inform in writing counsel for the Producing Party
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whose Protected Information has thus been disclosed of all relevant information concerning
the nature and circumstances of such disclosure. The responsible party also shall use its best
efforts to promptly retrieve the Protected Information and to ensure that there is no further or
greater unauthorized disclosure of the Protected Information, including informing the
recipients of the unauthorized disclosures of the terms of this Stipulation and Stipulation and
Order and requiesting that the recipients execute the attached Acknowledment.
24.

Nothing in this Stipulation and Order shall waive, prejudice, compromise, or

otherwise affect any matter of attorney-client privilege, work product protection, or any other
privilege, protection, or immunity, which matters shall be governed by the applicable law of
privilege, protection, or immunity. Nor shall anything in this Order be construed as a ruling
regarding the admissibility at trial of any document, testimony or other evidence.
25.

Pursuant to Federal Rules of Evidence 502(d) and (e) and Judge Schofield’s

Rule II.A.2, except when a party intentionally waives attorney-client privilege or work
product protection by disclosing such information to an adverse party as provided in Fed. R.
Evid. 502(a), production of any materials which a Producing Party later claims in good faith
should not have been produced because of an immunity, privilege, or other legal protection,
including but not limited to the attorney-client privilege and/or work product doctrine, will
not be deemed to have waived any privilege, immunity, or other legal protection. The
Producing Party may request the return of any such produced discovery materials. A request
for the return of materials shall identify the materials produced and the basis for withholding
them from production. If a Producing Party requests the return, pursuant to this paragraph, of
any produced material, such material and all copies or summaries thereof shall be returned to
the Producing Party within five (5) days or completely destroyed. The party returning such
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materials (the “Returning Party”) shall provide a certification of counsel that all such
disclosed materials (including copies or summaries of such material) have been returned or
completely destroyed and shall not use such items for any purpose until further order of the
Court. Within fifteen (15) business days of the certification that the disclosed materials have
been returned or destroyed, the Producing Party shall produce a privilege log with respect to
the disclosed materials. The Returning Party may then move the Court for an order
compelling production of the material, but said party shall not assert as a ground for entering
such an order the fact or circumstance of production.
26.

Any notice required under paragraphs 2(b), 12, 17, 20 or 22 of this Stipulation

and Order shall be delivered by hand, by fax or by electronic mail as a .pdf file. Computation of
all time periods under this Stipulation and Order shall be in accordance with Federal Rule of Civil
Procedure 6 and Local Rule 6.4.
27.

Subject to paragraph 1 supra, nothing in this Stipulation and Order shall

constitute a waiver by any party of the right to assert any objection to another party’s
discovery requests. The undersigned parties reserve the right to make all such objections.
28.

After this Stipulation and Order has been signed by counsel for the parties to this

Lawsuit, it shall be promptly presented to the Court for entry. Counsel agree to be bound by the
terms set forth herein once signatures to this Stipulation and Order are exchanged prior to the
time the Court enters this as an order, including, without limitation, with respect to materials
designated “Confidential” or “Confidential -- Attorneys Eyes Only” that have been produced
prior to the time the Court enters this as an order.
29.

Notwithstanding anything in this Stipulation and Order to the contrary, upon the

Court’s entry of this Stipulation and Order in the Lawsuit pursuant to Federal Rule of Evidence
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502(d), the terms of paragraph 24 supra of the Stipulation and Order shall govern all parties to
the Lawsuit, whether or not such parties are signatories hereto.
30.

The parties acknowledge that the Court retains discretion as to whether, in Orders

and Opinions, to afford confidential treatment to information that the parties have redacted,
sealed or designated as confidential.

REMAINDER OF PAGE INTENTIONALLY BLANK

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SO STIPULATED AND AGREED.
LOOMIS SAYLES TRUST
COMPANY, LLC
By its attorneys,
/s/ Matthew C. Baltay
Stephen P. Younger
Leah S. Rizkallah
FOLEY HOAG LLP
1301 Avenue of the Americas, 25th Floor
New York, NY 10019
[phone]

CITIGROUP GLOBAL MARKETS
INC.
By its attorneys,
/s/ Michael A. Paskin
CRAVATH, SWAINE & MOORE LLP
Michael A. Paskin
Helam Gebremariam
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Dean Richlin (pro hac vice)
Matthew C. Baltay (pro hac vice)
Natalie F. Panariello (pro hac vice)
FOLEY HOAG LLP
155 Seaport Boulevard
Boston, MA 02210
[phone]

Dated:

November 18, 2022

The parties are advised that the Court retains discretion
as to whether to afford confidential treatment to
sealed or redacted information in Orders and Opinions.
SO ORDERED:

November 21
Dated: __________________,
2022
Hon. Judge Lorna G. Schofield
United States District Judge

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