Ulrich v. O'Keefe

Filing 36

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... IT IS SO ORDERED. (Signed by Judge Mary Kay Vyskocil on 6/3/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------X
:
DAVID ULRICH,
:
:
Plaintiff,
:
:
-against:
:
JOHN O’KEEFE,
:
:
Defendant.
:
:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 6/3/2024
Civil Action No.: 23-cv-00686-MKV

STIPULATED PROTECTIVE ORDER
Discovery in this Action is likely to involve trade secrets, tax information, customer and
pricing lists and other valuable research, development, commercial, financial, technical and/or
proprietary information for which special protection from public disclosure and from use for any
purpose other than prosecution of this Action is warranted. Accordingly, to expedite the flow of
information, to facilitate the prompt resolution of disputes over confidentiality of discovery
materials, to adequately protect information the parties are entitled to keep confidential, to ensure
that the parties are permitted reasonable and necessary uses of such material in preparation for and
in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of
justice, a protective order for such information pursuant to Federal Rule of Civil Procedure
26(c)(1) is justified in this matter, as follows:

a.

“Protected Information” is any information designated as

Confidential or Highly Confidential – Attorneys’ Eyes Only under this Stipulated
Protective Order and any copies, abstracts, summaries, or information derived from such
Confidential Information or Highly Confidential Information – Attorneys’ Eyes Only.
Information is not Protected Information if it is in the public domain at the time of

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disclosure, is known to the public, or was known to the Recipient without obligation of
confidentiality before the Producer disclosed it. Information is likewise not Protected
Information if a person lawfully obtained it independently of this Action.

2.

“Outside Counsel” is an attorney or attorneys who are not employees
of a Party to this Action but have been retained to represent or advise
a Party to this Action and have appeared in this Action on behalf of
that Party or are affiliated with a law firm that has appeared on behalf
of that Party.Definitions:

“Confidential Information” is
any
oral, written,
or
recorded
information, document or thing, or any data derived from such information, document, or
thing, including any summaries, compilations, quotes, or paraphrases that a party
reasonably and in good faith believes to contain confidential information within the
meaning of Fed. R. Civ. P. 26(c)(l) used by it in, or pertaining to, its business and that is
not generally known, and which that party would not normally reveal to third parties or,
if disclosed, would require such third parties to maintain in confidence.

a.

“Party” means a named Party in this case.

b.

“Person” means an individual or an entity.

c.

“Producer” means a person who produces information via the

discovery process in this case. A Producer does not have to be a Party, and all Producers
in this case can designate information as Confidential or Highly Confidential – Attorneys’
Eyes Only under this Stipulated Protective Order.

d.

“Recipient” means a person who receives information via the

discovery process in this case.
“Highly Confidential Information – Attorneys’ Eyes Only” is information that is
Confidential as defined above and that the Producer reasonably and in good faith believes
is of such nature and character that disclosure of such information to anyone other than

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Outside Counsel would be harmful to the designating Party. For example, Highly
Confidential Information – Attorneys’ Eyes Only may include particularly sensitive
technical information relating to research for and production of current products, such as
product specifications, product metrics, and product efficiencies; technical, business, and
research information regarding future products, terms of compensation for
specialized service, non-public and highly sensitive financial information; marketing
and sales information, such as marketing plans and forecasts, competitive and market
differentiation analyses, operational sales support and sales pipeline information, pricing
data, revenue data, profitability data, product metrics, profitability drivers, cost data,
customer orders, customer quotations, and lists of customers, clients, vendors, or
providers; information related to proprietary infrastructure, workflow, and analytic
technologies; confidential business information, such as specialized business plans,
merger and acquisition considerations, and short-term and long-term competitive
strategies; any pending or abandoned patent applications, foreign or domestic; and such
other documents, information, or materials that relate to other proprietary information.

a.

“Electronically Stored Information” is information that is created
or stored electronically, including writings, drawings, graphs,
charts, photographs, presentations, spreadsheets, videos, sound
recordings, images, and other data or data compilations, and shall
have the same meaning as used in Fed. R. Civ. P. 34(a)(1)(A).

3.

Designation of Protected Information:

a.

A Person’s designation of Protected Information under this

Stipulated Protective Order means that the Person believes in good faith, upon reasonable

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inquiry, that the information qualifies as such.

b.

A person designates information in a document or thing as

Protected Information by clearly and prominently marking it on its face the legend
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as
appropriate. Protected Information that cannot be marked on its face (e.g., videotape,
audiotape, etc.) may be designated as Protected Information by clearly labeling the outside
of such media with the appropriate legend. Electronically Stored Information produced in
native file format can be designated as Protected Information by identifying the files (by
file name and/or bates number) as either Confidential or Highly Confidential – Attorneys’
Eyes Only in a letter, coversheet, metadata, or email accompanying the production sent
to the Recipient.

c.

A Producer may make documents or things containing Protected

Information available for inspection and copying without marking them as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
without forfeiting a claim of confidentiality, so long as the Producer causes copies of the
documents or things to be marked with the appropriate designation before providing them
to the Recipient.

d.

With respect to any depositions that involve a disclosure of

Protected Information, testimony given at deposition may be designated as Confidential
Information and/or Highly Confidential Information – Attorneys’ Eyes Only by Outside
Counsel by· making a statement orally to that effect on the record at any time during the
deposition. The Producer shall have until thirty (30) days after receipt of the final, certified
deposition transcript within which to inform all Parties that portions of the transcript are

4884-5596-5889, v. 2

to be designated Confidential Information and/or Highly Confidential Information –
Attorneys’ Eyes Only, which period may be extended by agreement of the Parties.
Deposition transcripts shall be treated by default as Highly Confidential Information –
Attorneys’ Eyes Only until the expiration of the time to make a confidentiality designation
unless otherwise agreed by the Parties. Upon being informed that certain portions of a
deposition are to be designated as Protected Information, each Party shall immediately
cause each copy of the transcript in its custody or control to be appropriately marked and
limit disclosure of that transcript in accordance with this Stipulated Protective Order.
Objections to confidentiality designations under this paragraph shall be governed by the
procedure set forth in Paragraph 3 below.

e.

A person’s failure to designate a document, thing, or testimony as

Protected Information does not constitute forfeiture of a claim of confidentiality as to any
other document, thing, or testimony and shall not be deemed a waiver in whole or in part
of a claim for confidential treatment.

f.

A person who has designated information as Protected

Information may withdraw the designation by written notification to all Parties.

g.

Entering into, agreeing to and/or producing or receiving

information designated as Protected Information or otherwise acting in accordance
with the terms of this Stipulated Protective Order, or failing to object thereto, shall
not:

i. operate as an admission by any Party that any particular
information comprises or reflects trade secrets,
proprietary or commercially sensitive information or

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any other type of confidential information;

ii. operate as an admission by any Party that the restrictions
and procedures set forth herein constitute reasonable
security measures or protection for any particular
information designated by any Party to be Protected
Information;

iii. prejudice or waive in any way the rights of the Parties to
object to the production of documents they consider not
subject to discovery for any reason;

iv. prejudice or waive in any way the rights of any Party to
object to the authenticity or admissibility into evidence
of any document, testimony or other evidence subject to
this Stipulated Protective Order;

v. prejudice or waive in any way the rights of a Party to
seek determination by the Court whether any Protected
Information should or should not be subject to the terms
of this Stipulated Protective Order;

vi. prejudice or waive in any way the rights of a Party to
petition the Court for a further protective order relating
to any purportedly confidential information;

vii. prejudice or waive in any way any claim or defense in this
Action; or

viii. prevent the Parties to this Stipulated Protective Order

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from agreeing in writing or on the record during a
deposition or hearing in this Action to alter or waive the
provisions or protections provided for herein with
respect to any particular Protected Information.

4.

Challenges to Designations of Protected Information:

a.

The Parties shall use reasonable care when designating

Protected Information. Nothing in this Stipulated Protective Order shall prevent a
Recipient from contending that any Protected Information has been improperly
designated. The Recipient may at any time request that the designating Party cancel
or modify the designation with respect to any document or any information
contained therein. A Party shall not be obligated to challenge the propriety of a
designation of any category at the time of production, and a failure to do so shall
not preclude a subsequent challenge thereto. If counsel for a Party receiving
documents or information designated as Protected Information hereunder objects to
such designation of any or all of such items, the following
procedure shall apply:

b.

Counsel for the objecting Party shall serve the counsel of the

designating Party or third party a written objection to such designation, which shall
describe with particularity the documents or information in question and shall state
the grounds for objection. Counsel for the designating Party or third party shall
respond in writing to such objection within fourteen (14) calendar days, and shall
state with particularity the grounds for asserting that the document or information
qualifies as Protected Information. If no timely written response is made to the

4884-5596-5889, v. 2

objection, the challenged designation will be deemed to be void. If the designating
Party or third party makes a timely response to such objection asserting the
propriety of the designation, counsel shall then confer in good faith in an effort to
resolve the dispute, and advise one another of both the factual and legal bases for
their respective positions.

c.

If a dispute as to the designation of the Protected

Information cannot be resolved by agreement, the objecting Party shall present the
dispute to the Court. The document or information that is the subject of the filing
shall be treated as originally designated pending resolution of the dispute.

5.

Use and Disclosure of Protected Information:

a.

Protected Information may only be used for purposes of this

case, and subject to the restrictions of this Stipulated Protective Order. Protected
Information may not be used for any other purpose including, without limitation,
litigation, business, competitive, or other purposes.

b.

Absent written permission from the Producer or further order by the

Court, the Recipient may only disclose Highly Confidential Information –
Attorneys’ Eyes Only to the following people:

i. Outside Counsel of record, including paralegal,
secretarial, and other supporting personnel assisting
such counsel;

ii. one (1) in-house counsel of each of the Parties directly
involved in this case whose access to the information is
reasonably required to supervise, manage, or participate

4884-5596-5889, v. 2

in this case and who is a member of at least one state bar
in good standing, or, if a Party does not have in-house
counsel, one (1) officer or executive of such Party who
does not, whether directly or indirectly, have any
operational business role that is competitive with the
producing Party or have strategic input on any business
that competes with the producing Party, provided he or
she has signed the acknowledgement in the form
attached hereto as Exhibit A;

iii. Technical Advisors and their necessary support
personnel engaged by Outside Counsel, provided they
have signed the acknowledgment in the form attached
hereto as Exhibit A (and subject to the provisions of
Paragraph 5 of this Stipulated Protective Order). The
term “Technical Advisor”' shall mean independent
outside technical expert witnesses, consulting experts,
or technical consultants (none of whom are employees)
retained by Outside Counsel for purposes of this Action
who are deemed reasonably necessary to assist such
counsel in connection with this litigation;

iv. stenographers and videographers employed for purposes
of this case;

v. outside document copying and/or document coding or

4884-5596-5889, v. 2

computerization services, provided that the manager of
such services has signed the acknowledgment in the
form attached hereto as Exhibit A;

vi. non-technical trial consultants, including graphics and
design firms retained by counsel for the Recipient for the
purpose of preparing demonstratives or other exhibits,
including their supporting personnel, provided that each
such consultant has signed the acknowledgment in the
form attached hereto as Exhibit A;

vii. the Producer, including officers and employees of the Producer;
viii. the authors, senders, addressees or intended copy
recipients of such Protected Information; and

ix. the Court, its employees, and personnel assisting the Court.
c.

Absent written permission from the Producer or further

order by the Court, the Recipient may only disclose Confidential Information to
the following people:

i. any individuals set forth in Paragraph 4(b) above;
ii. all in-house counsel for the Parties who either have responsibilityfor

making decisions dealing directly with the litigation of this Action, or
who are assisting Outside Counsel in the litigation of this Action, and
who are members of at least one state bar in good standing, or, if a
Party does not have in-house counsel, one (1) officer or executive of
such Party who does not, whether directly or indirectly, have any
operational business role that is competitive with the producing Party
or have strategic input on any business that competes with the
producing Party, provided that they have signed the acknowledgment
in the form attached hereto as Exhibit A; and
iii. up to and including three (3) designated representatives

4884-5596-5889, v. 2

of each of the Parties to the extent reasonably necessary
for the litigation of this Action, provided that each
designated

representative

has

signed

the

acknowledgement in the form attached hereto as Exhibit
A.

6.

Disclosure of Technical Advisors:

a.

Information designated by the Producing Party as Protected

Information and such copies of this information as are reasonably necessary for
maintaining, defending, or evaluating this Action may be furnished and disclosed
to the Receiving Party’s Technical Advisors and their necessary support personnel.

b.

No disclosure of Protected Information to a Technical

Advisor or their necessary support personnel shall occur until that person has
signed the acknowledgment in the form attached hereto as Exhibit A; and to the
extent there has been an objection under Paragraph 3, that objection is resolved.

c.

A Party desiring to disclose Protected Information to a

Technical Advisor shall also give prior written notice of the intended disclosure by
email to all Outside Counsel and the Producer shall have fourteen (14) calendar
days after such notice is given to object in writing to the disclosure. The Party
desiring to disclose Protected Information to a Technical Advisor must provide the
following information for each Technical Advisor: name, address, and curriculum
vitae. The Party desiring to disclosure Protected Information to a Technical
Advisor must also provide a listing of cases in which the Testifying Advisor has
testified as an expert at trial or by deposition within the preceding five years if the

4884-5596-5889, v. 2

Producer requests such information in good faith, in which case such information
must be provided within five (5) calendar days. No Protected Information shall be
disclosed to such Technical Advisors until after the expiration of the foregoing
notice period and resolution of any objection.

d.

A Party objecting to disclosure of Protected Information to

a Technical Advisor shall state with particularity the ground(s) of the objection.
The objecting Party’s consent to the disclosure of Protected Information to a
Technical Advisor shall not be unreasonably withheld, and its objection must be
based on that Party’s good faith belief that disclosure of its Protected Information
to the Technical Advisor will result in specific business or economic harm to that
Party.

e.

If after consideration of the objection, the Party desiring to

disclose the Protected Information to a Technical Advisor refuses to withdraw
the Technical Advisor, that Party shall provide notice to the objecting Party.
Thereafter, the objecting Party shall move the Court, within ten (10) calendar days
of receiving such notice, for a ruling on its objection. A failure to file a motion
within the ten (10) calendar day period, absent an agreement of the Parties to the
contrary or for an extension of such ten (10) calendar-day period, shall operate as
an approval of disclosure of the Protected Information to the Technical Advisor.
The Parties agree to cooperate in good faith to shorten the time frames set forth in
this paragraph if necessary to abide by any discovery or briefing schedules.

f.

The objecting Party shall have the burden of showing to the

Court “good cause” for preventing the disclosure of its Protected Information to

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the Technical Advisor. This “good cause” shall include a particularized showing
that: (1) the Protected Information is confidential commercial information, (2)
disclosure of the Protected Information likely would result in a clearly defined and
serious injury to the objecting Party’s business, (3) the proposed Technical Advisor
is in a position to allow the Protected Information to be disclosed to or become
known by the objecting Party’s competitors, and
(4) that the Technical Advisor’s access to Protected Information may create other
confidentiality or legal risks in connection with other patent-related activities or
interests tied to the Technical Advisor.

g.

A Party who has not previously objected to disclosure of

Protected Information to a Technical Advisor or whose objection has been resolved
with respect to previously produced information shall not be precluded from
raising an objection to a Technical Advisor at a later time with respect to materials
or information that are produced after the time for objecting to such a Technical
Advisor has expired.

7.

Submission of Protected Information to the Court: If it becomes

necessary to include or use Protected Information in any court filing, then any such filing shall be
made in accordance with Local Rule 1.11. Where a submitting Party does not file documents
submitted to the Court containing its own Protected Information under seal, the submitted material
will no longer qualify for protection as Protected Information under this Stipulated Protective Order
after a period of five (5) calendar days have elapsed from such a submission. This period of time is
afforded to allow the submitting Party, if its failure to file its Protected Information under seal was

4884-5596-5889, v. 2

inadvertent or unintended, a reasonable period of time to take appropriate measures to correct its
filing as needed. This provision applies only to that information which has been publicly filed.

8.

Use in Court: This Stipulation and Order does not address the use

ofProtected Information for the purpose of any hearing or trial that is open to the public. If any
Party wishes to maintain the confidentiality of any discovery materials in a court hearing or at trial,
it shall be the responsibility of such Party to raise the issue with the Court.

9.

Document Disposal: Within sixty (60) days after the entry of a final non-

appealable judgment or order, or the expiration of the deadline for any Party to
appeal any final judgment or order, or the complete settlement of all claims asserted
against all Parties in this Action, discovery materials designated as Protected
Information shall, at the request of the Producer, be returned to the Producer or, at
the option of the Recipient, be destroyed in that time frame. Upon request, each
Recipient shall provide the Producer with a letter certifying that all Protected
Information required to be returned or destroyed under this paragraph has been
returned or destroyed. Notwithstanding the requirements of this paragraph,
Outside Counsel for a Party may retain one complete set of each propounded
discovery request and the response thereto (but not any documents referenced in a
Rule 33(d) response), all pleadings and other documents filed with the Court, notes,
memoranda, email, correspondence or Electronically Stored Information
constituting work product that was generally based on Protected Information
discovery materials, hearing transcripts, and trial transcripts. The Parties will limit
their incorporation of Protected Information in pleadings to only what is necessary
to support the pleadings. Such Protected Information shall remain subject to all

4884-5596-5889, v. 2

requirements of this Stipulated Protective Order.

10.

Inadvertent Disclosure: In accordance with Fed. R. Evid. 502(b) and Fed.

R. Civ. Pro. 26(b)(5)(B), inadvertent production of documents or information
subject to the attorney-client privilege, work-product immunity, or any other
applicable privilege or immunity does not waive the privilege or immunity if the
holder of the privilege or protection took reasonable steps to prevent the disclosure
and a request for return of such documents or information is made promptly after
the Producing Party learns of its inadvertent production. Any dispute regarding
whether the Producing Party has properly asserted the privilege or protection will
be brought to the Court, if the Parties are not able to resolve it themselves.

11.

Remedies: Because a violation of this Stipulated Protective Order by a

Receiving Party could cause irreparable injury to the Producing Party, and
there is no adequate remedy at law for such violation, the Parties shall have the
right, in addition to any other remedies available to them at law or in equity, to
seek to enjoin a Receiving Party from any intentional violation of this Stipulated
Protective Order.

12.

Joinder of Parties: Any individual or entity who becomes a Party to this

Action and who has not subscribed to this Stipulated Protective Order as of the
time it is presented to the Court for signature may thereafter become a party to this
Stipulated Protective Order by having its counsel sign and date a copy thereof and
filing the same with the Court and serving such signed copy upon the other Parties
to this Stipulated Protective Order.

13.

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Third-Party Productions: Any documents produced by a non-party witness

in discovery in this Action pursuant to subpoena or otherwise may be designated
by such non-party or by any Party or counsel for any Party as Protected Information
under the terms of this Stipulated Protective Order, and such designation shall have
the same force and effect, and create the same duties, obligations, and remedies, as
if made by one of the undersigned Parties hereto.

14.

Subpoena or Legal Process: If a Party is served with a subpoena or court

order issued in another litigation that seeks or compels disclosure of any
information designated as Protected Information in this Action, that Party shall: (a)
promptly notify in writing the Designating Party, including a copy of the subpoena
or court order; (b) promptly notify in writing the party who caused the subpoena or
order to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Stipulated Protective Order; and (c) cooperate
with respect to all reasonable procedures sought to be pursued by the Designating
Party whose Protected Information may be affected. If the Designating 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 Protected
Information before a determination by the court from which the subpoena or order
issued, unless the Party has obtained the Designating Party’s permission. The
Designating Party shall bear the burden and expense of seeking protection in that
court of its Protected Information and nothing in these provisions should be
construed as authorizing or encouraging a Receiving Party in this Action to disobey
a lawful directive from another court.

15.

Extension

4884-5596-5889, v. 2

and

Modification:

Any

time

limit

contemplated

by

this

Stipulated Protective Order may be extended by an agreement in writing, signed by counsel of
record for each Party. Any Party may apply to the Court for a modification of this Stipulated
Protective Order with notice to the other Parties and for good cause.

16.

Survival of Obligations: This Stipulated Protective Order’s obligations

regarding Protected Information survive the conclusion of this Action including,
without limitation, any appeals therefrom.

17.

Governance of Proceeding: The provisions of this Stipulated Protective Order

shall govern discovery and all pretrial, trial, post-trial and appellate proceedings in this Action.

IT IS SO ORDERED.

Dated:

June 3, 2024

District Judge

STIPULATED AND AGREED TO BY:

COUNSEL FOR DEFENDANT JOHN
O’KEEFE

COUNSEL FOR PLAINTIFF DAVID
ULRICH

_/s/ Eric S. Medina_______
Eric S. Medina, Esq.

/s/ Pearl Zuchlewski
Pearl Zuchlewski, Esq.

Dated: May 24, 2024

Dated: May 24, 2024

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