Ademco Inc. v. TWS Technology LTD et al

Filing 58

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED. (Signed by Judge Arun Subramanian on 11/25/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ADEMCO INC. D/B/A RESIDEO,

Case No. 23-CV-8383 (AS)
Plaintiff,

v.

PROTECTIVE ORDER

TWS TECHNOLOGY (GUANGZHOU)
LIMITED, TWS TECHNOLOGY LTD., and
TWS TECHNOLOGY LLC,
Defendants.
ARUN SUBRAMANIAN, U.S.D.J.
The parties having agreed to the following terms of confidentiality, and the Court
having found that good cause exists for issuance of an appropriately tailored confidentiality
order governing the pre-trial phase of this action, it is therefore hereby:
ORDERED that any person subject to this Order—including without limitation the
parties to this action, their representatives, agents, experts, consultants, all third parties
providing discovery in this action, and all other interested persons with actual or constructive
notice of this Order—shall adhere to the following terms, upon pain of contempt:
1.

Any person subject to this Order who receives from any other person any
“Discovery Material” (i.e., information of any kind provided in discovery in this
action) that is designated as “Confidential” or “Confidential Attorneys’ Eyes
Only” (collectively, “Confidential Information”) pursuant to the terms of this
Order shall not disclose such Confidential Discovery Material to anyone else
except as expressly permitted hereunder.

2.

The person producing any given Discovery Material may designate as
Confidential only such portion of such material as consists of:

a. previously nondisclosed financial information (including without
limitation profitability reports or estimates, percentage fees, design
fees, royalty rates, minimum guarantee payments, sales reports, and
sale margins);
b. previously nondisclosed material relating to ownership or control of
any non-public company;
c. previously nondisclosed business plans, product development
information, or marketing plans;
d. any information of a personal or intimate nature regarding any
individual; or
e. any other category of information hereinafter given confidential status
by the Court.
3.

The person producing any given Discovery Material may designate as
Confidential Attorneys’ Eyes Only such portion of such material as consists of
Confidential information that a producing person considers in good faith to
constitute or contain trade secrets or other non-public, highly sensitive
confidential research, development, technical, business, and/or financial
information that has not become public, the disclosure of which is likely to cause
harm to the competitive position of the producing person.

4.

With respect to the Confidential Information portion of any Discovery Material
other than deposition transcripts and exhibits, the producing person or that
person’s counsel may designate such portion as “Confidential” by stamping or
otherwise clearly marking as “Confidential” or “Attorneys’ Eyes Only” by

2

stamping or otherwise clearly marking as “Confidential – Attorneys’ Eyes Only”
the protected portion in a manner that will not interfere with legibility or
audibility. With respect to deposition transcripts and exhibits, a producing person
or that person’s counsel may indicate on the record that the transcript contains
Confidential Information in which case the entire transcript shall be treated as
containing Attorneys’ Eyes Only Information for a fourteen day period from
receipt of the final deposition transcript to all for a party to designate whether the
entire transcript of any portion thereof to be designated as containing
Confidential or Attorneys’ Eyes Only, in which case such designated information
shall be marked and treated accordingly. If at the end of the fourteen day period,
there is no such designation, then the entire transcript will be considered
undesignated pursuant to this Protective Order.
5.

If at any time prior to the trial of this action, a producing person realizes that some
portion(s) of Discovery Material that that person previously produced without
limitation should be designated as Confidential, he or she may so designate by so
apprising all parties in writing, and such designated portion(s) of the Discovery
Material will thereafter be treated as Confidential under the terms of this Order.

6.

No person subject to this Order other than the producing person shall disclose any
of the Discovery Material designated by the producing person as Confidential to
any other person whomsoever, except to:
a. the parties to this action (if the party is a corporate entity, such disclosure
shall be limited to up to eight employees or officers of a party who either
have responsibility for making decisions dealing directly with the

3

litigation of this action or who are assisting outside counsel in
preparation for proceedings in this action);
b. outside counsel retained specifically for this action, including any
paralegal, clerical and other assistant employed by such counsel and
assigned to this matter;
c. as to any document, its author, its addressee, and any other person
indicated on the face of the document as having received a copy;
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 an
Exhibit hereto;
e. any person retained by a party to serve as an expert witness or otherwise
provide specialized advice to counsel in connection with this action,
subject to compliance with Paragraph 8;
f. stenographers engaged to transcribe depositions conducted in this
action;
g. any persons requested by outside counsel of record to furnish services
such as document coding, image scanning, mock trial, jury profiling,
translation services, court reporting services, demonstrative exhibit
preparation, or the creation of a computer database from documents for
outside counsel of record’s use only; and
h. the Court and its support personnel.

4

7.

No person subject to this Order other than the producing person shall disclose any
of the Discovery Material designated by the producing person as Attorneys’ Eyes
Only to any other person whomsoever, except to:
a. one party in-house attorney who has responsibility for making decisions
directly dealing with the litigation of this action;
b. outside counsel retained specifically for this action, including any
paralegal, clerical and other assistant employed by such counsel and
assigned to this matter;
c. as to any document, its author, its addressee, and any other person
indicated on the face of the document as having received a copy;
d. any person retained by a party to serve as an expert witness or otherwise
provide specialized advice to counsel in connection with this action,
subject to compliance with Paragraph 8;
e. stenographers engaged to transcribe depositions conducted in this
action;
f. any persons requested by outside counsel of record to furnish services
such as document coding, image scanning, mock trial, jury profiling,
translation services, court reporting services, demonstrative exhibit
preparation, or the creation of a computer database from documents for
outside counsel of record’s use only; and
g. the Court and its support personnel.

8.

Further, prior to disclosing Confidential or Attorneys’ Eyes Only to a Receiving
Party’s proposed expert or consultant, the Receiving Party must provide to the

5

Producing Party (a) a signed Non-Disclosure Agreement in the form annexed as
Exhibit hereto; (b) the resume or curriculum vitae of the proposed expert or
consultant, including identifying the proposed expert’s or consultant’s current
employer; (c) a list that identifies each person or entity for which the proposed
expert or consultant has consulted during the last four years, and that identifies the
general subject matter of the work; and (d) a listing of cases in which the proposed
expert or consultant has testified as an expert at trial or by deposition within the
preceding four years. The producing party will thereafter have five business days
from receipt of this material to object to any proposed individual. The objection
must be made for good cause and in writing, stating with particularity the reasons
for the objection. Failure to object within five business days constitutes approval.
If the Parties are unable to resolve any objection, the receiving party may apply to
the Court to resolve the matter. There will be no disclosure to any proposed
individual during the five business day objection period, unless that period is
waived by the producing party. Unless the Parties otherwise resolve the objection,
the objecting party shall have an additional seven business days from the end of
the objection period to file an appropriate motion to preclude the employment of
the expert or consultant and/or disclosures of Confidential or Attorneys’ Eyes
Only material to him or her, and no Confidential or Attorneys’ Eyes Only material
that is the subject of the objection will be disclosed until the motion is decided.
The times to respond as set out in this paragraph shall not begin to run unless the
identifying information served regarding the expert complies with the
requirements set out herein.

6

9.

All Confidential Discovery Material filed with the Court, and all portions of
pleadings, motions or other papers filed with the Court that disclose such
Confidential Discovery Material, shall be filed under seal and kept under seal until
further order of the Court. The parties will use their best efforts to minimize such
sealing. In any event, any party filing a motion or any other papers with the Court
under seal shall also publicly file a redacted copy of the same, via the Court’s
Electronic Case Filing system, that redacts only the Confidential Discovery
Material itself, and not text that in no material way reveals the Confidential
Discovery Material.

10.

Any party who either objects to any designation of confidentiality may at any time
prior to the trial of this action serve upon counsel for the designating person a
written notice stating with particularity the grounds of the objection or request. If
agreement cannot be reached promptly, counsel for all affected persons will
address their dispute to this Court in accordance with Paragraph 5 of this Court’s
Individual Practices in Civil Cases.

11.

All persons are hereby placed on notice that the Court is unlikely to seal or
otherwise afford confidential treatment to any Discovery Material introduced in
evidence at trial, even if such material has previously been sealed or designated as
Confidential Information. The Court also retains unfettered discretion whether to
afford confidential treatment to any Confidential Document or information
contained in any Confidential Document submitted to the Court in connection with
any motion, application, or proceeding that may result in an order and/or decision
by the Court.
7

12.

Each person who has access to Discovery Material that has been designated as
Confidential Information shall take all due precautions to prevent the unauthorized
or inadvertent disclosure of such material.

13.

If, in connection with this litigation, a party inadvertently discloses information
subject to a claim of attorney-client privilege or attorney-work-product protection
(“Inadvertently Disclosed Information”), such disclosure shall not constitute or be
deemed a waiver or forfeiture of any claim of privilege or work product protection
with respect to the Inadvertently Disclosed Information and its subject matter.

14.

If a disclosing party makes a claim of inadvertent disclosure, the receiving party
shall not thereafter review the Inadvertently Disclosed Information for any
purpose, except by order of the Court. The receiving party shall, within five
business days, return or destroy all copies of the Inadvertently Disclosed
Information, and provide a certification of counsel that all such information has
been returned or destroyed.

15.

Within five business days of the notification that such Inadvertently Disclosed
Information has been returned or destroyed, the disclosing party shall produce a
privilege log with respect to the Inadvertently Disclosed Information.

16.

As with any information redacted or withheld, the receiving party may seek an
order from the Court compelling production of the Inadvertently Disclosed
Information. The receiving party should follow the procedures in Paragraph 5 of
the Court’s Individual Practices in Civil Cases and shall not assert as a ground for
entering such an Order the fact or circumstances of the inadvertent production.
8

17.

The disclosing party retains the burden of establishing the privileged or protected
nature of any Information. Nothing in this Order shall limit the right of any party
to request an in camera review of the Inadvertently Disclosed Information.

18.

This Protective Order shall survive the termination of the litigation. Within 30
days of the final disposition of this action, all Discovery Material designated as
“Confidential,” or “Attorneys’ Eyes Only” and all copies thereof, shall be
promptly returned to the producing person, or, upon permission of the producing
person, destroyed. Notwithstanding, each attorney of record may retain a copy of
any Confidential or Attorneys’ Eyes Only document that was submitted to the
Court, a set of all deposition transcripts, a set of all deposition exhibits, a set of all
trial exhibits, and all correspondence generated in connection with the action.

19.

This Court shall 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.

9

SO STIPULATED AND AGREED.

Dated: November 20, 2024

/s/Faris Rashid
Neil L. Sambursky, Esq.
PILLINGER MILLER TARALLO, LLP
1140 Franklin Avenue, Suite 214
Garden City, New York 11530
[e-mail]
[phone]
PMT File No. N-RESID-00123
Faris Rashid, Reg. No. 0391508
(pro hac vice)
Farah N. Famouri, Reg. No. 0403295
(pro hac vice)
Michelle K. Erickson, Reg. No. 0504419
(pro hac vice)
GREENE ESPEL PLLP
222 S. Ninth Street, Suite 2200
Minneapolis, MN 55402
[e-mail]
[e-mail]
[e-mail]
[phone]
Attorneys for Plaintiff Ademco Inc.
d/b/a Resideo

10

Dated: November 20, 2024
New York, NY
/s/ Alex G. Patchen
Alex G. Patchen
Ari J. Jaffess
Ronald Abramson
Gina K. Kim
LISTON ABRAMSON LLP
The Chrysler Building
405 Lexington Avenue, 46th Floor
New York, NY 10174
Tel: [phone]
Email: [e-mail]
Attorneys for Defendants

SO ORDERED.
November 25, 2024
Dated: ____________
New York, NY

ARUN SUBRAMANIAN, U.S.D.J.

11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ADEMCO INC. D/B/A RESIDEO,

Case No. 23-CV-8383 (AS)
Plaintiff,

v.

NON-DISCLOSURE
AGREEMENT

TWS TECHNOLOGY (GUANGZHOU)
LIMITED, TWS TECHNOLOGY LTD., and
TWS TECHNOLOGY LLC,
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 or Attorneys’ Eyes Only. 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. 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.

Dated: