Holley et al v. The City of New York et al

Filing 56

STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Magistrate Judge Sarah Netburn on 6/4/2024) (dsh)

Officer Thomas Accomando, Freddy Pichardo, and Lieutenant Elvin Pichardo, (collectively
“defendants”), as follows:
1. As used herein, “Action” shall mean the pending action between plaintiffs and
defendants captioned Anthony Holley, et al., v. City of New York, et al., 23 Civ. 1838 (RA) (SN).
2. As used herein, “Producing Party” shall mean the party requesting that a
particular document or the information contained therein be deemed confidential, and “Receiving
Party” shall mean any party who is not the “Producing Party”, as defined herein, for that document
or information.
3. As used herein, without waiving any objections the Producing Party might seek
to interpose regarding production of these documents, “Confidential Materials” shall mean:
(A) New York City Police Department (“NYPD”) personnel and employment
history and records;
(B) NYPD disciplinary-related records and information regarding the conduct of
Police Officers of the NYPD, including, but not limited to, investigations
conducted by the NYPD, Civilian Complaint Review Board, the New York
City Department of Investigation, or other agencies;
(C) Plaintiffs’ medical records;
(D) A list from the New York City Police Department that identifies plaintiffs’
prior arrests by date of arrest, charge(s) and disposition, including all sealed
arrests;
(E) Names and addresses of non-party individuals/witnesses who have been
identified and/or disclosed by the producing party to the extent such
information is within the producing party’s possession;

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(F) Other documents and information that may in good faith, during the pendency
of this litigation, be designated “Confidential Material” by the parties or the
Court.
4. The documents and information as defined in paragraph “3” shall not be
deemed “Confidential Materials” to the extent, and only to the extent, that they are: (a) obtained
by the Receiving Party from sources other than the Producing Party, (b) obtained by the parties
pursuant to the Freedom of Information Laws (“FOIL”), 1 or (c) are otherwise publicly available.
5. The Producing Party shall designate in good faith particular documents
“Confidential Materials” by labeling such documents “Confidential” and/or by designating such
documents by bates number in a writing directed to the Receiving Party. The Producing Party shall
have a reasonable time to inspect and designate as “Confidential Materials” documents sought
from third parties.
6.

Any documents produced by a non-party to a party herein pursuant to a

subpoena in this Action and that are designated as Confidential Material by such receiving party
shall be governed by the terms of this Stipulation and Protective Order.
7.

The Producing Party reserves the right to designate any document

confidential pursuant to this agreement, if necessary, after production of such documents to the
Receiving Party.
8.

Inadvertent production of any document or information which is privileged,

was prepared in anticipation of litigation, and/or is otherwise immune from discovery, shall not

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To the extent that plaintiffs have obtained or obtain documents pursuant to FOIL, production of
such documents must be made to defendants pursuant to Rule 26, and should be clearly labelled
as having been obtained via FOIL.

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constitute a waiver of any privilege or of another ground for objecting to discovery with respect to
that document, or its subject matter, or the information contained therein, or of the Producing
Party’s right to object to the use of any such document or the information contained therein during
any proceeding in this litigation or otherwise.
9.

Notwithstanding the provisions of this Protective Order, if the Receiving

Party or anyone on the Receiving Party’s behalf make public representations, the substance of
which concerns or is contained in the Confidential Materials, the Producing Party may move the
Court, on an expedited basis, for relief.
10.

The Receiving Party shall not use the Confidential Materials for any

purpose other than for the litigation, preparation, settlement or presentation of such party’s case in
this Action.
11.

If the Receiving Party objects to the designation of any particular document

as Confidential Material, the party shall state such objection in writing to the Producing Party, and
the parties shall in good faith attempt to resolve such objection. If the objection cannot be resolved
among the parties, the Receiving Party, within 45 days of the initial objection, may request that
the Court remove the designation. Any such materials or information shall remain Confidential
until the parties resolve the objection or there is a resolution of the designation by the Court.
12.

The Receiving Party’s attorney shall keep confidential for “attorney’s eyes

only” the personal and identifying information (including, but not limited to, social security
number, date of birth, driver’s license, address and telephone number) regarding non-NYPD and/or
civilian witnesses identified by the production of documents or otherwise identified in the course
of this litigation. Such information shall be used only by the attorney or their law firm or agents
for the purpose of communication with witnesses, or the service of subpoenas, and shall not be

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disclosed to the Receiving Party, his or her family members, or other persons, and such information
shall not be included in documents publicly filed with the Court.
13.

The Receiving Party’s attorney shall not disclose the Confidential Materials

to any person not a member of the staff of his law office, except under the following conditions:
a. Disclosure may be made only if necessary to the preparation or presentation of
the Receiving Party’s case in this action, to those individuals described in
subparagraph (b) below.
b. Disclosure before trial may be made only to the plaintiffs or defendants, to an
expert who has been retained or specially employed by a party’s attorney in
anticipation of litigation or preparation for this action, to a witness at deposition,
or to the Court.
c. Before any disclosure is made to a person listed in subparagraphs (a) and (b)
above (other than to the Court), the Receiving Party’s attorney shall provide
each such person with a copy of this Stipulation and Protective Order for
review, and such person shall consent in writing, in the form annexed hereto as
Exhibit A, not to use the Confidential Materials for any purpose other than in
connection with the prosecution or settlement of this Action and not to further
disclose the Confidential Materials except in testimony taken in this Action.
The Receiving Party shall retain the signed consent and furnish a copy to the
Producing Party’s attorneys upon request at a deposition or immediately before
trial, although the name of an expert that a party does not intend to call as a trial
witness may be redacted from such consent before it is produced.

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d. Defendants’ attorneys may also disclose the Confidential Materials to the New
York City Police Department, the New York City Comptroller’s Officer, and
the New York City Mayor’s Office, solely in connection with the defense or
settlement of this Action.
e. Disclosure of medical records deemed “Confidential” under this Protective
Order may also be made to any individual who provided the treatment described
in the records or to a member of the staff of the hospital, doctor’s office, or
medical provider where the treatment was rendered.
14.

A party may designate deposition testimony as Confidential either by: (a)

indicating on the record during the deposition that a question relates to Confidential Materials, in
which event 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 the opposing party, in writing, within 30 days after a deposition has concluded (during
which time the entire deposition will be considered “Confidential”), of the specific pages and lines
of the transcript that are to be designated “Confidential,” in which event the parties 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 party or their counsel.
15.

If any paper which incorporates any Confidential Materials or reveals the

contents thereof is filed in this Court, those portions of the papers shall be filed under seal, in
accordance with the rules of the district court in which the Action is filed and/or the Individual
Rules of the judge to whom the papers are directed.
16.

However, where the confidential information is not material to issues

addressed in court submissions and the parties agree in writing that the redaction of personal,

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confidential and/or identifying information would be sufficient to protect the interests of parties or
non-parties, a party may file redacted documents without further order of the Court.
17.

In addition, where reasonable advance notice is given by a party and the

parties agree in writing to the use of the confidential information in support of a motion for
summary judgment or any other dispositive motion or at a trial on the merits in this matter, such
information will not be subject to the instant protective order. In the event that the Confidential
Materials may be disclosed at a hearing or at trial, the Court may impose appropriate safeguards
for the presentation of such Confidential Materials.
18.

This Stipulation will survive the termination of the litigation and will

continue to be binding upon all persons to whom Confidential Materials are produced or disclosed.
All documents or information that have been deemed confidential pursuant to this order, including
all copies and non-conforming copies thereof, shall remain confidential for all time. Once the
Action has been resolved, including all appeals, the Confidential Materials, including all copies
and non-conforming copies thereof, shall not be used by the Receiving Party, or anyone receiving
confidential documents pursuant to paragraph 13 (subsection (b)) herein, for any purpose without
prior Court approval.
19.

This Stipulation shall be binding upon the parties immediately upon

signature and shall be submitted to the Court for entry as an Order.
20.

The terms of this Stipulation and Protective Order shall be binding upon all

current and future parties to this Action and their counsel.

**SPACE INTENTIONALLY LEFT BLANK**

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EXHIBIT A
The undersigned hereby acknowledges that s/he has read the Stipulation and
Protective Order dated ___________, 2022, entered into the action entitled Anthony Holley et al.,
v. City of New York, et al., 23 Civ. 1838., and understands the terms thereof. The undersigned
agrees not to use the Confidential Materials defined therein for any purpose other than in
connection with the prosecution of this case, and will not further disclose the Confidential
Materials except in testimony taken in this case.

Date:

Signature:

Print Name:

Occupation:

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