Lewis et al v. City of New York
Filing
31
PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED, Motions terminated: 30 CONSENT LETTER MOTION for Leave to File Proposed Protective Order addressed to Judge Colleen McMahon from Rob Rickner dated 1/21/2025. filed by Kelly Lewis. (Signed by Judge Colleen McMahon on 1/27/2025) (ks)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KELLY LEWIS, individually and as
proposed Administrator of the Estate of
EMANUEL DEVINE SULLIVAN,
Plaintiff,
ELECTRGNI~.
LY F .
.+--l.-11
DOC#: _ _
DTE ·ILED: _ LJ~~-
--===========-----
Case No .: 23-CV-7594
PROTECTIVE ORDER
-against-
THE CITY OF NEW YORK,
Defendants.
WHEREAS, the parties have agreed to engage in limited discovery prior to
responding to the Complaint, and will require a protective order going forward if the case
does not resolve;
THE COURT HEREBY ORDERS THAT:
1.
As used herein, "Action" shall mean the above-captioned action .
2.
"Confidential Materials" shall mean:
a.
New York City Department of Correction ("DOC") personnel and
discip linary-related records, and records of investigations regarding DOC
staff;
b.
The medical records of the deceased, Emanuel Devine Sullivan. Any
records relating to the criminal charges that resulted in Emanuel Devine
Sullivan being incarcerated, which were dismissed when he died, and any
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other records relating to sealed arrests and prosecutions;
c.
Any document(s) or information relating to educational records, including
but not limited to documents that include grades; assignments; coursework;
credits; diplomas; school services; attendance ; discipline ; school-related
medical, psychiatric records, and/or substance disorder records.
d.
Other documents and infonnation that may in good faith, during the
pendency of this litigation, be designated "Confidential Material" by the
parties or the Court, except that such documents and information shall not
be designated "Confidential Materials" to the extent that they relate to the
ineident(s) underlying the Complaint in the aetion, are obtained by the
parties by subpoena or pursuant to the New York Freedom of Information
Law ("FOIL"), or are otherwise publicly available.
3.
The parties shall have forty-five (45) days to inspect and designate as Confidential
Material documents and information provided in response the first request made by the opposing
party and thirty (30) days for such designation for subsequent requests. If either party needs
additional time to so designate a production, the parties can confer and agree upon additional time
without Court order.
4.
This Court's Order shall not be interpreted as a waiver of objections the parties may
make in respons e to the opposing party's request for documents and information .
5.
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.
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6.
A Receiving Party and that party 's attorneys shall not use Confidential Materials
produced m discovery in the Action for any purpose other than the evaluation, preparation,
presentation or settlement of claims or defenses in the Action.
7.
Attorneys fo r a Receivi ng Party shall not disclose the Confidential Materials to any
person other than a party, an attorney of record for that party, or any member of the staff of that
attorney's offic e, except under the fo llowing conditions :
a.
Disclos ure may be made for the purpose of preparing or presenting a party 's
claims or defenses in the Action.
b.
Disclosure may also be made to an expert or consultant who has been
retained or specially employed by a party 's attorneys in anticipation of
litigation or preparation for trial of the Action, to a witness at a deposition
or in preparation for testimony at a deposition or trial , or to the Court. The
parties should meet and confer if any production requires a designation of
"For Attorneys' or Experts' Eyes Only."
c.
Defendants' attorneys may also disclose the Confidential Materials to the
New York City Department of Correction, the New York City Comptroller's
Office, and the New York City Mayor 's Office, solely in connection with
the defense or settlement of this Action .
8.
Before any disclosure is made to a person listed in subparagraph (b) above (other
than to the Court or to a witness at a deposition), the Receiving Party's attorney shall provide each
such person with a copy of this Protective Order, 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, defense , or settlement of the Action and not to make further
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disclosure of the Confidential Materials, except in testimony taken in the Action. The attorneys for
a Receiving Party making such disclosure shall retain the signed consent and furnish a copy to the
Producing Party's attorney upon request at a deposition or immediately before trial, although the
name of an expert that the Receiving Party does not intend to call as a trial witness may be redacted
from such a consent before it is produced.
9.
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.
10.
The Producing Party or its counsel may designate documents as Confidential by
clearly marking the documents with the word "CONFIDENTIAL" in an area of the document, like
the margins, where the text and content of the document itself is not obstructed in any way;
watermarks or other markings on the document itself are not permitted. The disclosure of a
document or information without designating it as "confidential" shall not constitute a waiver of
the right to designate such document or information as Confidential Material. If subsequently so
designated, the document or information shall thenceforth be treated as Confidential Material
subject to all the terms of this Order. The parties will meet and confer if either party discovers
later on that a document is confidential , and agree whether the party waived such designation or
such document shall thenceforth be treated as Confidential Material.
11.
Pursuant to FRCP 502, inadvertent disclosure of privileged communications shall
not constitute a waiver of the privilege in this matter provided the parties follow the steps set forth
in Rule 502.
12.
The Producing Party or its counsel may designate deposition exhibits or portions
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of deposition transcripts 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 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 event 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 party 's counsel.
13.
If a Receiving Party objects to the designation of any Confidential Materials as
confidential, he or she shall state such objection in writing to counsel for the Producing Party, and
counsel shall in good faith attempt to resolve such conflict. If the conflict cannot be resolved
among counsel, the Producing Party shall, within 45 days of the initial objection, seek a ruling
from the Court as to whether the document should remain confidential. Any such materials or
information shall be treated as Confidential until the parties resolve the conflict or the Court issues
its ruling regarding the conflict.
14.
Any party seeking to file papers with the Court that incorporate Confidential
Materials or reveal the contents thereof shall first make an application to the Court for permission
to file under seal the specific portions of those papers disclosing Confidential Materials and shall
indicate whether any other party objects to that request. No materials shall be filed under seal
unless the Court has issued an order approving the filing, in which event the filing shall follow the
District Court rules applicable to filing under seal.
15.
Nothing in th is Protective Order shall be construed to limit a Producing Party's use
of its own Confi dential Materials in any manner, or to limit the use of Confidential Materials or
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their contents to the extent that they are publicly available or have been provided to a party through
other lawful means, such as a FOIL request.
16.
This Protective Order shall not be constructed to limit, modify, or interfere in any
manner with DOC's or its employees' of officials' use in the ordinary course of business and as
permitted by law documents and information designated as Confidential Material in this action
that they legally have in their possession and that were not received through disclosure in this acton
or through releases or authorizations signed by Plaintiff.
17.
Nothing in this Protective Order will prevent the parties from producing any
confidential material in their 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 the Parties give written notice to the producing Pa1iy 's counsel as soon as reasonably
possible, and if pennitted by the time allowed under the request, at least 10 business days before
any disclosure. Upon receiving such notice, the Producing Pa1iy will bear the burden to oppose
compliance with the subpoena, other compulsory process, or other legal notice if the Producing
Party deem it appropriate to do so.
18.
This Protective Order 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 nonconforming copies thereof, shall not be used by the Receiving Party for any purpose without prior
Court approval.
19.
The Court wi ll retain jurisdiction over all persons subject to this Protective Order
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to the extent necessary to enforce any obligations arising hereunder or to impose sanctions for any
contempt thereof.
The Parties may seek modification of this Protective Order by application to
the Court for good cause. Additionally, the Court reserves the right, in its sole discretion, to modify
this Protective Order at any time.
20.
Nothing in this Protective order constitutes an admission by any party that
Confidential Materials disclosed in this phase of the action is relevant or admissible. Each party
reserved the right to object to the use or admissibility of the Confidential Infonnation.
21.
Pursuant to Section VI of the Court 's Individual Practices and Procedures, the
parties accept the Court's addendum regarding confidentiality, as follows :
a.
The parties understand that the Court's "so ordering" of this stipulation does
not make the Court a party to the stipulation or imply that the Court agrees
that documents designated as "Confidential" by the parties are in fact
confidential.
b.
It has been this Court's consistent experience that confidentiality
stipulations are abused by parties and that much material that is not truly
confidential is designated as such . The Court does not intend to be a party
to such practices. The Court operates under a presumption that the entire
record should be publicly available.
c.
The Court does not ordinarily file decisions under seal or redact material
from them. If the Court issues a decision in this case that refers to
" confidential" material under this stipulation, the decision will not be
published for ten days. The parties must, within that ten-day period, identify
to the Court any portion of the decision that one or more of them believe
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should be redacted, provide the Court with the purportedly confidential
material, and explain why that material is truly confidential. The Court will
then determine whether the material is in fact genuinely deserving of
confidential treatment. The Court will only redact portions of a publicly
available decision if it concludes that the material discussed is in fact
deserving of such treatment. The Court's decision in this regard is final.
SO ORDERED :
r ,
1
COLLEEN MCMAHON
United States District Judge
~o5
Dated: )
2.0~
New y;7k, New York
9
EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KELLY LEWIS, individually and as
proposed Administrator of the Estate of
EMANUEL DEVINE SULLIVAN,
Case No.: 23-CV-7594
ACKNOWLEDGEMENT
Plaintiff,
-againstTHE CITY OF NEW YORK,
Defendants.
The undersigned hereby acknowledges that (s)he has read the Protective Order
issued in the above-captioned case, and understands the terms thereof. The undersigned
agrees not to use the Confidential Materials defined therein for any purpose other than as
permitted by the Protective Order, and will not further disclose the Confidential Materials
except in testimony taken in this case.
Date
Signature
Print Name
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