Hafizov v. BDO USA, LLP et al

Filing 29

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Judge John P. Cronan on 1/17/23) (yv)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Rinat Hafizov,
Case No. 1:22-cv-08853 (JPC)
Plaintiff,
v.
BDO USA, LLP, JANET BERNIER and
MATTHEW DYMENT, in their individual
and professional capacities,

STIPULATED
CONFIDENTIALITY AGREEMENT
AND PROTECTIVE ORDER

Defendants.

JOHN P. CRONAN, U.S.D.J.:
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 the Parties to this action, their respective officers, agents,
servants, employees, and attorneys, any other person in active concert or participation with any of
the foregoing, and all other persons with actual notice of this Order will adhere to the following
terms, upon pain of contempt:
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

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“Confidential” pursuant to this Order, no person subject to this Order may disclose such
Confidential Discovery Material to anyone else except as expressly permitted hereunder.
2.

The Party or person producing or disclosing Discovery Material (each,

“Producing Party”) may designate as Confidential only the portion of such material that it
reasonably and in good faith believes consists of:
(a)

previously

non-disclosed

sensitive,

proprietary,

confidential,

or

competitively sensitive business, commercial, or financial information
(including without limitation profitability reports or estimates, percentage
fees, design fees, royalty rates, minimum guarantee payments, sales reports,
and sale margins, plaintiff’s compensation, and/or client/customer
information);
(b)

previously non-disclosed sensitive and/or proprietary business plans,
product-development information, or marketing plans;

(c)

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

(d)

any other category of information given confidential status by this Court
after the date of this Order.

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 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.

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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 a deposition has concluded, 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.
5.

If at any time before the termination 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
notifying all Parties in writing. Thereafter, all persons subject to this Order will treat such
designated portion(s) of the Discovery Material as Confidential. In addition, the Producing Party
shall provide each other Party with replacement versions of such Discovery Material that bears the
“Confidential” designation within two business days of providing such notice.
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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(a)

the Parties to this action, including in-house counsel, 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
document-management 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 Exhibit A 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 Non-Disclosure Agreement in the form annexed as Exhibit A
hereto;

(g)

any person a Party retains or considers retaining 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 Exhibit A hereto;

(h)

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

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(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 Exhibit A
hereto stating that 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 (after a written request), whichever comes first.
9.

This Order binds the Parties and certain others to treat as Confidential any

Discovery Materials so classified. The Court has not, however, made any finding regarding the
confidentiality of any Discovery Materials, and retains full discretion to determine whether to
afford confidential treatment to any Discovery Material designated as Confidential hereunder. All
persons are placed on notice that the Court is unlikely to seal or otherwise afford confidential
treatment to any Discovery Material introduced into evidence at trial, even if such material has
previously been sealed or designated as Confidential.
10.

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, including any third party seeking confidential
treatment of the information, shall comply with Rule 4 of the Court’s Individual Rules of Practice
in Civil Cases.
11.

Any party who either objects to any designation of confidentiality, or who

requests further limits on disclosure (such as “attorneys’ eyes only” in extraordinary

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circumstances), may at any time prior to the trial of this action serve upon counsel for the
designating person a written notice identifying the disputed designations or designation request.
The other party shall then promptly (within no later than three business days) respond, including
where applicable, explaining the basis for the disputed designations and/or agreeing to remove
such designations. Within three business days of such party’s response, the parties will meet and
confer in an effort to resolve any remaining disputes. If the parties cannot reach a prompt
agreement respecting the designation or objection, the designating party shall within three
business days file an application seeking approval of its requested designations.
12.

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 other 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.
13.

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.

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14.

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.
15.

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 – to the Producing Party (if requested in writing), or otherwise destroy such material –
including all copies thereof. In either event, by the 60-day deadline, the recipient must certify (if
requested in writing) 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, attorney work product, or any other documents required to be retained in order to
comply with their professional legal responsibilities, even if such materials contain Confidential
Discovery Material. Any such archival copies that contain or constitute Confidential Discovery
Material remain subject to this Order.
16.

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

be binding upon all persons subject to this Order to whom Confidential Discovery Material is
produced or disclosed.
17.

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.
SO STIPULATED AND AGREED.

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WIGDOR LLP

MCDERMOTT WILL & EMERY LLP

By:

By:

David E. Gottlieb

Lindsay Ditlow

85 Fifth Avenue
New York, New York 10003
Telephone: [phone]
[e-mail]

One Vanderbilt Avenue
New York, New York 10017-3852
Telephone: [phone]
[e-mail]

Attorneys for Plaintiff

Attorneys for Defendants
Dated: January 12, 2023

Dated: January 12, 2023
SO ORDERED.
Dated: January 17, 2023
New York, New York

JOHN P. CRONAN
United States District Judge

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Exhibit A

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Exhibit A to Stipulated
Confidentiality Agreement
and Protective Order
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Rinat Hafizov,
Case No. 1:22-cv-08853(JPC)
NON-DISCLOSURE AGREEMENT

Plaintiff,
v.
BDO USA, LLP, JANET BERNIER and
MATTHEW DYMENT, in their individual
and professional capacities,
Defendants.

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 return all discovery information to the Party or
attorney from whom I received it upon written request, or otherwise destroy such information.
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.
[SIGNATURE PAGE TO FOLLOW]

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Name:
Dated:

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