Jovani Fashion Ltd. v. Jasz Couture,Inc. et al

Filing 27

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... So Ordered. (Signed by Judge Lorna G. Schofield on 5/18/2023) (vfr)

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

1

JOVANI FASHIONS, LTD.,
Plaintiff,

1:23-cv-01994 (LGS)

- against Jasz Couture, Inc., Tawinder Singh and
John Does 1-100
Defendants.

STIPULATED CONFIDENTIALITY
AGREEMENT AND PROTECTIVE
ORDER

Lorna G Schofield U.S.D.J.:
WHEREAS, the parties have recognized and agreed that this lawsuit will or may
require the disclosure to opposing parties of information considered by the disclosing
party to be confidential, and
WHEREAS, the parties wish to proceed expeditiously with discovery in this
action without burdening the Court with unnecessary procedural litigation and therefore
wish to agree on a reasonable means of protecting such information from being placed on
the public record or being disclosed to third parties; and
WHEREAS, good cause exists for entry of a confidentiality protective order;
IT IS HEREBY STIPULATED AND AGREED, by and among the undersigned
counsel for the above-captioned parties as follows:
1.

This Protective Order (“Order”) governs the handling of confidential

and/or privileged information contained in documents, electronically stored information,
deposition testimony and deposition exhibits, trial testimony, disclosures, interrogatory
responses, answers to requests for admissions and other discovery devices and materials

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 2 of 13

2
(“Discovery Material”) produced by or obtained from or relating to any of the parties to
this action.
2.

If any party hereto believes that the Discovery Material in the action

contains or discloses trade secrets, proprietary or commercial information, personnel
records of corporate employees, information subject to a right to privacy, or any other
commercially or personally sensitive information of a non-public nature, it may designate
such Discovery Material as “Confidential” by prominently marking the same
“Confidential” or, if this is not practicable, by advising opposing counsel of such
designation in writing.
3.

The parties may also designate Confidential Discovery Material as

”Confidential-Attorneys’ Eyes Only” (or an abbreviation thereof). A producing person or
party shall make the Confidential-Attorneys’ Eyes Only designation only as to
Confidential Discovery Material which that person or party in good faith believes to
constitute or include trade secrets or other highly sensitive personal or commercial
information within the meaning of Rule 26(c), Fed. R. Civ P.
4.

Any party may, on the record of the deposition or by written notice to

counsel for all parties, no later than twenty-one (21) days after receipt of a deposition
transcript (not including “rough” transcripts), designate all or any portion thereof,
including exhibits, as Confidential or Confidential-Attorneys’ Eyes Only under the terms
of this Order. During the twenty-one (21) day period, all transcripts, exhibits and
information contained herein will be deemed to be Confidential-Attorneys’ Eyes Only in
their entirety under the terms of this Protective Order. All copies or parts thereof of
deposition transcripts and exhibits that contain confidential matter shall be prominently

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 3 of 13

3
marked Confidential or Confidential-Attorneys’ Eyes Only on the cover thereof and on
every page so designated.
5.

Discovery Material designated Confidential and/or Confidential

Attorneys’ Eyes Only shall be used solely for the purpose of this or related litigation,
including in the preparation for trial, at trial and/or in connection with any appeal of this
action and shall not be used for any other purpose whatsoever.
6.

In the event any of the parties hereto obtain documents or material by

virtue of subpoenas issued to third parties, either party may also advise the others in
writing, of the intent to consider said documents or material as Confidential and/or
Confidential-Attorneys’ Eyes Only pursuant to the terms of this Order.
7.

Confidential Discovery Material shall be produced to and used solely by

(i) the parties, including all officers, directors or employees of a party, former or current,
assisting in the prosecution or defense of the action and for whom it is necessary to
disclose the Confidential Discovery Material, all of whom shall be advised of and agree
to be bound by the terms of this Order and (ii) the parties’ attorneys of record, who shall
not disclose or permit disclosure of the Confidential Discovery Material or the contents
thereof, except to the following persons:
(a)

their law partners, associates, paralegal and other persons
employed by the law offices of such attorneys;

(b)

outside vendors, such as court reporters, copy centers or translation
services specifically engaged to assist counsel with the prosecution
or defense of this action;

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 4 of 13

(c)

4
bona fide outside experts or consultants and their employees, not
on the staff of any party, consulted by such attorneys for assistance
in their prosecution or defense of the claims in this litigation, who
have signed the undertaking annexed hereto as Appendix A;

(d)

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 Appendix A to this Protective order;

(e)

the authors and the original recipients of the documents;

(f)

other persons, upon written consent of the producing parties or
with leave of the Court after notice to the party producing such
Confidential Discovery Material;

(g)

the Court, Court personnel and members of any jury, including
alternates, impaneled to hear his matter; and

(h)

Claims adjusters, counsel, and/or employees of any insurance

company that may be obligated, in whole or part, to defend or indemnify a party in the
instant action.
8.

Use of any Discovery Material marked Attorneys’ Eyes Only, including

all information derived therefrom, shall be restricted solely to the following persons, who
are to be advised of and agree to be bound by the terms of this Order, unless additional
persons are stipulated by counsel or authorized by the Court:

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 5 of 13

(a)

5
outside counsel for any party to the above-captioned litigation, and
all employees of outside counsels’ firm, including but not limited
to paralegal assistance and clerical employees;

(b)

bona fide outside experts or consultants and their employees, not
on the staff of any party, consulted by the parties’ outside attorneys
for assistance in the prosecution or defense of the claims in this
litigation, who have signed the undertaking annexed hereto as
Appendix A;

(c)

the authors and the original recipients of the documents;

(d)

any deposition or trial witness may be shown and examined on any
document if the witness (1) prepared or received the document
previously, (2) is currently employed by the party that produced
the document, or (3) is representing the party that produced the
document as a designee in response to a deposition notice in the
above-captioned action, and provided that such witness may not
retain any “Attorneys’ Eyes Only” Material.;

(e)

other persons, upon written consent of the producing party or with
leave of the Court after notice to the party producing Attorneys’
Eyes-Only Discovery Material;

(f)

the Court, Court personnel and members of any jury, including
alternates, impaneled to hear this matter; and

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 6 of 13

(g)

6
Claims adjusters, counsel, and/or employees of any insurance

company that may be obligated, in whole or part, to defend or indemnify a party in the
instant action.
9.

Each person to whom Confidential Discovery Material or Confidential-

Attorneys’ Eyes Only Discovery Material or the contents thereof is to be disclosed
pursuant to paragraph 7 (i) and 7 (ii) (b) - (f) and 8 (b) - (e) above, shall agree to be
bound thereby;
(a)

that he or she has read a copy of this Order and agrees to be bound
thereby;

(b)

that he or she will not disclose such Confidential or ConfidentialAttorneys’ Eyes Only Discovery Material or the contents thereof to
any person not entitled thereto under this Order; and

(c)

that he or she will not use such Confidential or ConfidentialAttorneys’ Eyes Only Discovery Material or the contents thereof
except in connection with these limitations.

With respect to persons designated in paragraphs 7(i), 7(ii) (b)-(f) and 8(b)-(e),
such agreement shall be manifested by the signature of each person on a copy of
Appendix A hereto, which shall be maintained by the attorney for the party who has
disclosed the Confidential Discovery Material to such person. Prior to the disclosure of
Confidential Discovery Materials to a person that signed a copy of Appendix A, a
copy of the signed Appendix A must be forwarded to all counsel in this matter.
Counsel for the designating party shall have five (5) business days after receiving said
signed Appendix A to provide a written objection to the disclosure of such Confidential

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 7 of 13

7
Discovery Materials. Confidential Discovery Materials shall not be disclosed to the
person that signed the Appendix A unless five (5) business days have lapsed since receipt
of the signed Appendix A by counsel for the designating party and such counsel has not
served a written objection by e-mail on counsel for all parties in the above-captioned civil
action. Upon receipt of such written objection, counsel shall negotiate in good faith to
resolve the dispute as to the disclosure. If counsel are unable to resolve the dispute, the
objecting party may, on notice, file an application requesting the Court to prohibit the
proposed disclosure. Any such application shall be filed within five (5) business days
after service of the party’s objection. An objecting party’s failure to file such an
application within the specified period shall be deemed a withdrawal of the party’s
objection. If an application is timely filed, the proposed disclosure shall not occur
pending the ruling of the Court on such application and the objecting party shall have the
burden of proving that the proposed disclosure should not be permitted.
10.

This Order shall not be construed to prevent any parties from making

copies of any Confidential or Confidential-Attorneys’ Eyes Only Discovery Material
hereby disclosed. However, all such copies shall be subject to the provisions of this
Order.
11.

In the event that any Confidential or Confidential-Attorneys’ Eyes Only

Material is used in any court proceeding in connection with this litigation, it shall not lose
its Confidential or Confidential-Attorneys’ Eyes Only status through such use, and the
parties shall take all steps reasonably required to protect its confidentiality during such
use.

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 8 of 13

12.

8
All information subject to confidential treatment in accordance with the

terms of this Order that is filed with the Court, and any pleadings, motions or other
papers filed with the Court disclosing any confidential information, shall be filed under
seal only as provided in Judge Schofield’ Rule I.D.3. Where possible, only confidential
portions of filings with the Court shall be filed under seal. If the Court does not permit a
party to file certain confidential information under seal, the parties shall be able to file,
and rely upon, such information to prosecute and/or defend against this case.

13.

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 only as provided in Judge Schofield’s Rule I.D.3, 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. The Confidential Court Submission shall
also be marked as follows:
CONFIDENTIAL OR ATTORNEYS’ EYES ONLY
IN ACCORDANCE WITH A CONFIDENTIALITY ORDER, THE
ENCLOSURES SHALL BE TREATED AS CONFIDENTIAL AND
SHALL NOT BE SHOWN TO ANY PERSON OTHER THAN THOSE
PERSONS DESIGNATED IN PARAGRAPHS 7(G) AND 8(F) OF THE
CONFIDENTIAL ORDER.
14.

Each individual who received any Confidential or Confidential-Attorneys’

Eyes Only Material hereby agrees to subject himself/herself to the jurisdiction of this

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 9 of 13

9
Court for the purpose of any proceedings relating to the compliance with or violation of
this Confidentiality Order.
15.

A party shall not be obligated to challenge the propriety of a Confidential

or Confidential-Attorneys’ Eyes Only designation at the time made, and failure to do so
shall not preclude subsequent challenge thereto. In the event that any party to this
litigation disagrees at any stage of these proceedings with such designation, such party
shall provide to the producing party written notice of its disagreement with the
designation. The parties shall first try to dispose of such dispute in good faith on an
informal basis. If the dispute cannot be resolved within ten (10) business days of the date
of receipt of the written notice (unless circumstances require a quicker resolution), or if
the producing party has not responded to said written notice within ten (10) business days
(unless circumstances require a quicker resolution), the party objecting to the confidential
status of any information may request appropriate relief from the Court. The burden of
establishing that information has been properly designated as Confidential or
Confidential-Attorneys’ Eyes Only is on the party making such designation. Discovery
Material designated as Confidential or Confidential-Attorneys’ Eyes Only shall be treated
as so designated unless and until the Court directs otherwise.
16.

The inadvertent production of privileged or otherwise protected material

shall not be deemed a waiver of the applicable privilege or protection. When a party
gives notice that certain inadvertently produced material is subject to a claim of privilege
or other protection, the obligations of the parties who received the information are those
set forth in Federal Rule of Civil Procedure 26(b)(5)(B). Nothing herein shall preclude a

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 10 of 13

10
producing party from seeking relief for an inadvertent disclosure of material protected by
privilege or work product or other protection.
17.

In the event anyone shall inadvertently disclose information to another

party or third party that has been designated CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES ONLY, the party making the inadvertent disclosure shall, upon
learning of the disclosure:
(a)

Promptly notify the person to whom the disclosure was made that

the disclosure contains Confidential Information and that it did not intend to waive
privilege or confidentiality;
(b)

Promptly make all reasonable and necessary efforts to obtain the

return of and preclude dissemination or use of the Confidential Information by the person
to whom disclosure was inadvertently made; and
(c)

Promptly notify all other parties of the identity of the person to

whom the disclosure was made, the circumstances surrounding the disclosure, and the
steps that have been taken and will be taken to ensure against further dissemination or use
of the Confidential information.
In the event anyone shall violate, or threaten to violate, any terms of this Order,
the parties hereto agree that the aggrieved party may immediately apply to obtain
injunctive relief against any such person.
18.

Nothing herein shall prevent any person from seeking, by written

agreement of the parties or Court order, further, greater, or lesser protection with respect
to the use of any Confidential or Confidential-Attorneys’ Eyes Only Materials in
connection with this Action.

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 11 of 13

19.

11
Entering into, agreeing to and/or producing or receiving materials or

otherwise complying with the terms of this Order shall not:
(a)

prejudice or effect in any way the rights of any party to this action
to object to the production of documents it considers not subject to
discovery under the F.R.C.P. or otherwise;

(b)

prejudice in any way the rights of a party to seek a court
determination:
(i)

whether particular discovery material should be produced;
or

(ii)

if produced, whether such discovery material should be
subject to the terms of this Protective Order;

(c)

prejudice, affect or apply to statutory or common law privileges,
all of which are preserved and may be asserted by any party
irrespective of the provisions of this Order; or

(d)

prejudice or affect in any way the rights of any party to this action
to object upon any grounds to the admission of any document or
thing into evidence at the time of trial or otherwise.

20.

In the event additional persons become parties to this litigation, they shall

not have access to Confidential or Confidential-Attorneys’ Eyes Only Discovery Material
produced by or obtained by any parties to this action until the newly joined party, by its
counsel, has executed and filed with the Court a copy of this Order.
21.

Within 45 (45) days of the conclusion of this litigation, whether by

judgment, settlement or otherwise (and after exhaustion of all appeals), all Confidential

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 12 of 13

12
or Confidential-Attorneys’ Eyes Only Discovery Materials, and copies thereof, shall be
returned to counsel for the producing party or such Discovery Material shall be certified
in writing to have been destroyed.
22.

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.
23.

No Discovery Material shall be designated as “Confidential” or

“Confidential – Attorneys’ Eyes Only,” or shall be subject to this Order or any other
obligation restricting subsequent use or dissemination of information if: (a) such
information was freely accessible to the general public at the time of disclosure; (b)
such information becomes publicly available from a source other than the receiving
party; (c) the receiving party can show by written document that information was in
its rightful and lawful possession at the time of disclosure; or (d) the receiving party
lawfully receives such information at a later date from a nonparty without restriction
as to disclosure, provided such nonparty had the right to make the disclosure to the
receiving party.

Case 1:23-cv-01994-LGS Document 27 Filed 05/18/23 Page 13 of 13

13
24.

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.

______/Joseph Sofer/_______
Joseph Sofer, Esq.
Attorney for Plaintiff, Jovani Fashions, Ltd.
Sofer & Haroun, LLP
110 West 40th Street
New York, New York 10018
[e-mail]

_______/James L. Jacobs/______
James L. Jacobs, Esq.
Attorney for Defendants, Jasz Couture, Tawinder Singh
GCA Law Partners, LLP
2570 W. El Camino Real, Suite 400
Mountain View, California 94040
[e-mail]
So Ordered.
Dated: May 18, 2023
New York, New York