Zesty Paws LLC v. Nutramax Laboratories, Inc. et al.

Filing 80

JOINT PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...So Ordered. (Signed by Judge Lorna G. Schofield on 2/5/2024) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ZESTY PAWS LLC

)
Plaintiff/Counterclaim
)
Defendant,
)
v.
)
)
NUTRAMAX LABORATORIES, INC. and
) Civil Action No. 1:23-cv-10849
NUTRAMAX LABORATORIES VETERINARY
)
SCIENCES, INC.,
) JURY TRIAL DEMANDED
)
Defendants/Counterclaim )
So Ordered.
Plaintiffs.
)
)
Dated: February 5, 2024
)
New York, New York
NUTRAMAX LABORATORIES, INC. and
)
NUTRAMAX LABORATORIES VETERINARY
)
SCIENCES, INC.
)
)
Third-Party Plaintiffs, )
v.
)
)
HEALTH AND HAPPINESS (H&H) US
)
INTERNATIONAL INCORPORATED,
)
)
Third-Party Defendant. )
--------------------[PROPOSED] JOINT PROTECTIVE ORDER
Defendants/Counterclaim Plaintiffs/Third-Party Plaintiffs Nutramax Laboratories, Inc. and
Nutramax Laboratories Veterinary Sciences, Inc. (both, collectively, “Nutramax”), Plaintiff and
Counterclaim Defendant Zesty Paws LLC and Third-Party Defendant Health and Happiness (H&H)
International Incorporated (both, collectively, “Zesty Paws”) have jointly moved this Court for the
entry of a protective order to govern the production of Discovery Material (defined below), by
both parties and non-parties, in the above-captioned action (the “Lawsuit”).

Having read and considered the Parties’ motion, and finding good cause shown, the
Parties’ motion is hereby GRANTED. The below provisions shall apply to all discovery
conducted in the Lawsuit.
I.

DEFINITIONS
Designated Material

A.

The term “Designated Material” shall mean any Discovery Material (as defined in Section
I.C) designated by a Producing Party (as defined in Section I.E) as either “CONFIDENTIAL
INFORMATION,” “HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES
ONLY,” or “HIGHLY CONFIDENTIAL INFORMATION – OUTSIDE ATTORNEYS’ EYES
ONLY” in accordance with Paragraphs III.A through III.D below. All Designated Material and
any information or material copied or derived therefrom, and all copies, excerpts, and summaries
thereof, as well as testimony and oral conversations which reveal that information, shall be treated
as and hereinafter referred to as Designated Material.
Designations Defined

B.
1.

“CONFIDENTIAL INFORMATION” comprises or contains information that

the Producing Party claims in good faith to constitute or relate to sensitive business,
financial, or commercial information that is not publicly available and provides a
commercial advantage to its possessor and the disclosure of which to persons other than
those set forth in Section V.A. below would create a substantial risk of serious harm that
could not be avoided by less restrictive means.
2.

“HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES

ONLY” comprises or contains information that the Producing Party claims in good faith is
information that is of a highly confidential nature and is competitively sensitive or

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important to the Producing Party’s business, the disclosure of which to persons other than
those set forth in Section V.B below could create a risk of harm that could not be avoided
by less restrictive means.
3. “HIGHLY CONFIDENTIAL MATERIAL – OUTSIDE ATTORNEYS’ EYES
ONLY” means any Highly Confidential Information (regardless of how it is generated,
stored, or maintained) that derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use; and is the subject
of the Producing Party’s efforts that are reasonable under the circumstances to maintain its
secrecy. Such information would include, but is not limited to, financial information
(including sales, revenue and profit information), the disclosure of which to persons other
than those set forth in Section V.C below could create a risk of harm that could not be
avoided by less restrictive means.
C.

Discovery Material

The term “Discovery Material” shall mean any Document (as defined at Local Civil Rule
26.3(c)(2)), material, item, testimony, or thing filed with or presented to the Court or produced,
served, exchanged, or generated during the discovery process, including, for example, exhibits;
answers to interrogatories; responses to requests for admissions; responses to requests for
production and any documents produced in connection therewith; subpoenas; declarations;
affidavits; letters; emails; deposition testimony or transcripts; and all copies, extracts, summaries,
compilations, designations, and portions thereof.
D.

Party

The term “Party” shall have the definition as outlined in Local Civil Rule 26.3(c)(5).

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E.

Producing Party

The term “Producing Party” shall mean any Party to the Lawsuit or any non-party,
including its counsel, retained experts, directors, officers, employees, or agents, who produces any
Discovery Material during discovery for the Lawsuit.
F.

Receiving Party

The term “Receiving Party” shall mean any Party to the Lawsuit, including its counsel,
retained experts, directors, officers, employees, or agents, who receives any Discovery Material.
II.

RESTRICTION ON DISCLOSURE AND USE OF DESIGNATED MATERIAL
A.

Scope

This Order shall encompass all Discovery Material produced during this Lawsuit except
that this Order shall not encompass information that (a) is lawfully in the possession of or otherwise
known to the Receiving Party or the public before the date of its transmission to the Receiving
Party, (b) lawfully comes into the possession of the Receiving Party by means other than by
production by Producing Party, or (c) lawfully comes into the possession of or otherwise becomes
known to the public after the date of its transmission to the Receiving Party, provided that such
information does not become publicly known by any act or omission of the Receiving Party that
would be in violation of this Order.
B.

Purpose

Designated Materials shall be used solely for purposes of and in connection with this
Lawsuit and the information contained therein shall not be used or disclosed for any other purpose,
including, without limitation, any business or commercial purpose.

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C.

Confidentiality

Designated Material and the information derived from such Designated Material
(excluding information which is derived lawfully from an independent source) shall not be given,
shown, made available, discussed, or otherwise communicated or disclosed in any manner, either
directly or indirectly, to any person not authorized to receive the information under the terms of
this Order.
D.

Maintenance of Designated Material

Designated Material shall be maintained by the Receiving Party at a location and under
circumstances reasonably designed to ensure compliance with this Order. The Receiving Party
shall protect the confidentiality of Designated Material using procedures that are no less stringent
than the measures used to protect the Receiving Parties’ own Designated Material or similar
confidential material.
E.

Restrictions on Designated Materials

The restrictions on the use of Designated Material established by this Order are applicable
to the Receiving Party. A Producing Party is free to do whatever it desires with its own Designated
Material.
F.

Discovery from Non-Parties

Information sought or obtained from a person not a Party to the Lawsuit (“non-party”) shall
be treated as Designated Material if requested by the non-party. Any such information designated
as “CONFIDENTIAL INFORMATION,” “HIGHLY CONFIDENTIAL INFORMATION ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL INFORMATION – OUTSIDE
ATTORNEYS’ EYES ONLY” pursuant to Paragraphs III.A to III.D by a non-party will be
accorded the same protection as the Parties’ Designated Material, and will be subject to the same

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procedures as those governing disclosure of the Parties’ Designated Material pursuant to this
Order. Any Party may seek to challenge designations by a non-party under the provisions of
Paragraph IV.B after providing at least ten (10) business days written notice to the non-party and
agreeing that it will not object to the non-party appearing in this Lawsuit for the limited purpose
of seeking to preserve its requested designation.
G.

Unintentional Disclosure of Designated Material

If Designated Material, or any portion thereof, is disclosed by the Receiving Party to any
person or Party not authorized to receive such Designated Material under this Protective Order,
then the Receiving Party shall use its best efforts to retrieve immediately all copies of such
Designated Material, and to bind such person to the terms of this Order. In such event, the
Receiving Party shall also (a) promptly inform such person of all the provisions of this Order; (b)
identify such person immediately to the Producing Party; and (c) request that such person execute
the Confidentiality Undertaking in Exhibit A.
III.

PROCEDURE FOR MARKING DESIGNATED MATERIAL
Any Producing Party may mark Designated Material as either “CONFIDENTIAL

INFORMATION,” “HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES
ONLY,” or “HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE ATTORNEYS’ EYES
ONLY” in accordance with this Order. The burden of establishing that Designated Material is
either “CONFIDENTIAL INFORMATION,” “HIGHLY CONFIDENTIAL INFORMATION ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE
ATTORNEYS’ EYES ONLY” as defined herein shall be on the Producing Party. The designation
of Designated Material by a Producing Party shall be deemed effective unless and until the Court

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orders otherwise or the Producing Party withdraws the designation. Designated material must be
marked in the following manner:
A.

In the case of documents or any other tangible thing produced, designation shall be

made by placing the legend “CONFIDENTIAL INFORMATION,” “HIGHLY CONFIDENTIAL
INFORMATION - ATTORNEYS’ EYES

ONLY,” or “HIGHLY CONFIDENTIAL

INFORMATION - OUTSIDE ATTORNEYS’ EYES ONLY” on each page of the document or on
the cover or in a prominent place on any other tangible thing prior to production of the document
or tangible thing along with a designation, e.g., bates number prefix, of the identity of the
Producing Party;
B.

In the case of electronically stored information (“ESI”) produced in native format,

designation shall be made by contemporaneously producing a bates-numbered slip sheet bearing
the

legend

“CONFIDENTIAL

INFORMATION,”

INFORMATION - ATTORNEYS’ EYES

“HIGHLY

CONFIDENTIAL

ONLY,” or “HIGHLY CONFIDENTIAL

INFORMATION - OUTSIDE ATTORNEYS’ EYES ONLY,” and including the corresponding
bates number in the file name of the native-format file (e.g., NUTRAMAX0001234.xls). Any
Party printing or otherwise creating a tangible copy of the native file shall include the legend
“CONFIDENTIAL INFORMATION,” “HIGHLY CONFIDENTIAL INFORMATION ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE
ATTORNEYS’ EYES ONLY” on each page of the document;
C.

In producing original files and records for inspection, no marking need be made by

the Producing Party in advance of the inspection. For the purposes of the inspection, all documents
produced shall be considered as marked “HIGHLY CONFIDENTIAL INFORMATION –
OUTSIDE ATTORNEYS’ EYES ONLY.” Thereafter, upon selection of specified documents for

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copying by the Receiving Party, the Producing Party shall mark as either “CONFIDENTIAL
INFORMATION,” “HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES
ONLY,” or “HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE ATTORNEYS’ EYES
ONLY,” as applicable, the copies of such documents as may contain either CONFIDENTIAL
INFORMATION, HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES ONLY,
or HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE ATTORNEYS’ EYES ONLY, as
defined in Paragraphs I.B.1 through I.B.3 at the time the copies are produced to the Receiving
Party. There will be no waiver of confidentiality by the inspection of CONFIDENTIAL
INFORMATION, HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES ONLY,
or HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE ATTORNEYS’ EYES ONLY
information before it is copied and marked pursuant to this Order; and
D.

In the case of testimony provided during a deposition or hearing, transcripts or

portions thereof shall be designated by the Producing Party either (i) on the record during the
deposition or hearing, in which case the pages of the transcript containing Designated Material
shall

be

marked

“CONFIDENTIAL

INFORMATION,”

INFORMATION - ATTORNEYS’ EYES

“HIGHLY

CONFIDENTIAL

ONLY,” or “HIGHLY CONFIDENTIAL

INFORMATION - OUTSIDE ATTORNEYS’ EYES ONLY,” as applicable, by the reporter, as a
Party may direct; or (ii) by captioned, written notice to the reporter and all counsel of record, given
within three (3) business days (in the case of any testimony taken prior to the preliminary
injunction hearing scheduled to commence on April 16, 2024) (the “Preliminary Injunction
Hearing”) and within fifteen (15) business days (in the case of any testimony taken during or after
the Preliminary Injunction Hearing) after the reporter sends written notice to the witness or the
witness’s counsel that the transcript is available for review, in which case all counsel receiving

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such notice shall be responsible for marking the copies of the designated transcript or portion
thereof in their possession or control as directed by the Producing Party or witness. Pending
expiration of the applicable three-day or fifteen-day period or the receipt of such written notice
from a Party (whichever comes first), all Parties and, if applicable, any third-party witnesses or
attorneys, shall treat the deposition transcript and the information contained therein as if it had
been designated HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES ONLY.
If no such written notice is provided within the applicable three-day or fifteen-day period, the
designation(s) made during the deposition shall stand. If such written notice is provided, the
designation(s) provided in such notice shall be effective upon receipt. No person other than a court
reporter or Court personnel shall attend the designated portions of such depositions unless such
person is an authorized recipient of Designated Material under the terms of this Order.
E.

In the event that a deposition or hearing is attended only by persons authorized to

receive Designated Material, counsel may, for purposes of efficiency, state on the record that the
entire transcript for that day is to be treated as Designated Material until such time as there is a
written request to specifically identify the portions of the transcript that are CONFIDENTIAL
INFORMATION, HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES ONLY,
or HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE ATTORNEYS’ EYES ONLY. In
the event of such request, the Party desiring to maintain the treatment of any portion of the
transcript as CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION
- ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE

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ATTORNEYS’ EYES ONLY shall specify, by page and line numbers, the designated portions
within fifteen (15) business days of the written request.
IV.

CONTESTING THE DESIGNATION
A.

No Party to this Lawsuit shall be obligated to challenge the propriety of any

designation by any Producing Party, and a failure to do so shall not constitute a waiver or in any
way preclude a subsequent challenge in the Lawsuit to the propriety of such designation.
B.

Any Party may contest a claim of confidentiality. Any Party objecting to the

designation of any Discovery Material as CONFIDENTIAL INFORMATION, HIGHLY
CONFIDENTIAL

INFORMATION

-

ATTORNEYS’

EYES

ONLY,

or

HIGHLY

CONFIDENTIAL INFORMATION - OUTSIDE ATTORNEYS’ EYES ONLY must give outside
counsel of record for the Producing Party (or, if the Producing Party is not represented by counsel
in the Lawsuit, the Producing Party itself) written notice of its reasons for the objection at least
sixty (60) days prior to the commencement of trial in this Lawsuit or, if the objection is made prior
to the Preliminary Injunction Hearing, at least ten (10) days prior to the Preliminary Injunction
Hearing. The Producing Party will then have ten (10) days (or, if the objection is made prior to
the Preliminary Injunction Hearing, three (3) days) after receipt of such notice to change the
designation or respond in writing why the designation is appropriate. Failing resolution after
service of the written notice of its reasons for the objection, the Party objecting may, on a duly
noticed motion, seek an order changing or removing the designation. The Producing Party
asserting confidentiality has the burden of showing that the designation is appropriate. The
information designated as CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL
INFORMATION

-

ATTORNEYS’

EYES

ONLY,

or

HIGHLY

CONFIDENTIAL

INFORMATION - OUTSIDE ATTORNEYS’ EYES ONLY shall remain as such (i) unless the

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Producing Party does not respond in writing why the designation is appropriate within the
applicable notice period after receipt of the written notice of the objecting Party’s reasons for the
objection; (ii) until the matter is resolved by Court order; or (iii) until agreement of the Producing
Party.
V.

DISCLOSURE OF DESIGNATED MATERIALS
A.

Unless otherwise directed by the Court or authorized in writing by the Producing

Party, Discovery Material designated as CONFIDENTIAL INFORMATION under this Order may
be disclosed by the Receiving Party only to the following persons:
1.

counsel of record for the Receiving Party, including their regularly employed

support staff (law clerks, paralegals, secretaries, and clerical staff) assisting with the
Lawsuit;
2.

the Parties’ respective in-house attorneys (irrespective of whether they are

counsel of record in the Lawsuit), including their regularly employed support staff (law
clerks, paralegals, secretaries, and clerical staff) assisting with the Lawsuit;
3.

the officers, directors, and employees of the Receiving Party to whom

disclosure is directly necessary for the Lawsuit;
4.

Judges, Magistrate Judges, law clerks, and clerical personnel of the Court

before which the Lawsuit is pending including any appellate Court, and the jury, if any;
5.

court reporters and other persons involved in recording or transcribing hearings,

trial testimony, or deposition testimony in the Lawsuit;
6.

consultants (not including trial and jury consultants), or experts and their staff

who are expressly retained or sought to be retained by an attorney described in subparagraph 1 or 2 of this section to provide assistance in the Lawsuit, provided that any such

11

persons first execute the Confidentiality Undertaking in Exhibit A. Disclosures under this
sub-paragraph are to be made only to the extent necessary to perform such assistance;
7.

any person who authored and/or received, before the commencement of the

Lawsuit, the particular CONFIDENTIAL INFORMATION sought to be disclosed to that
person, or any witness testifying in a deposition or hearing when the examining attorney
has a good faith basis to believe the witness is the author and/or received, before the
commencement of the Lawsuit, the particular CONFIDENTIAL INFORMATION sought
to be disclosed to that witness. Any witness testifying in a deposition or hearing may be
shown CONFIDENTIAL INFORMATION of a Producing Party provided that the witness
is: (a) a current employee, attorney, director, officer, or agent of the Producing Party, or a
corporate designee of the Producing Party under Rule 30(b)(6) of the Federal Rules of Civil
Procedure; or (b) a former employee, attorney, director, officer, or agent of the Producing
Party if, at the time of the witness’ employment, the CONFIDENTIAL INFORMATION
was in existence and the witness had access to such CONFIDENTIAL INFORMATION;
8.

litigation support vendors retained by outside counsel for such functions as

photocopying, scanning, stenography, videography, imaging, or preparation of graphics,
demonstratives, and audio and/or video productions or other exhibits for deposition, trial,
or other court proceedings in the Lawsuit, but only if they execute the Confidentiality
Undertaking in Exhibit A, and only to the extent necessary for the particular litigation
support services being rendered and in accordance with the vendor’s ordinary operating
procedure;
9.

mock jurors, trial consultants, and jury consultants engaged by the Parties in

preparation for trial, provided that (i) no Party will use any mock juror, trial consultant, or

12

jury consultant who is employed or affiliated with or who knows any person employed by
or affiliated with either Party to the Lawsuit; (ii) mock jurors, trial consultants, and jury
consultants will not be allowed to retain any tangible materials that contain or disclose any
Designated Material; and (iii) any such persons first execute the Confidentiality
Undertaking in Exhibit A; and
10.

persons who have been retained by a Party to provide translation or

interpretation from one language to another, provided that such translators execute the
Confidentiality Undertaking in Exhibit A.
B.

Unless otherwise directed by the Court or authorized in writing by the Producing

Party, Discovery Material designated as HIGHLY CONFIDENTIAL INFORMATION ATTORNEYS’ EYES ONLY may be disclosed by the Receiving Party only to the following
persons:
1.

counsel of record for the Receiving Party, including their regularly employed

support staff (law clerks, paralegals, secretaries, and clerical staff) assisting with the
Lawsuit;
2.

the Parties’ respective in-house attorneys (irrespective of whether they are

counsel of record in the Lawsuit), including their regularly employed support staff (law
clerks, paralegals, secretaries, and clerical staff) assisting with the Lawsuit;
3.

Judges, Magistrate Judges, law clerks, and clerical personnel of the Court

before which the Lawsuit is pending including any appellate Court, and the jury, if any;
4.

court reporters and other persons involved in recording or transcribing hearings,

trial testimony, or deposition testimony in the Lawsuit;

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5.

consultants (not including trial and jury consultants), or experts and their staff

who are expressly retained or sought to be retained by an attorney described in subparagraph 1 or 2 of Section V.A to provide assistance in the Lawsuit, provided that any
such persons first execute the Confidentiality Undertaking in Exhibit A. Disclosures under
this sub-paragraph are to be made only to the extent necessary to perform such work;
6.

any person who authored and/or received, before the commencement of the

Lawsuit, the particular HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’
EYES ONLY information sought to be disclosed to that person, or any witness testifying
in a deposition or hearing when the examining attorney has a good faith basis to believe
the witness is the author and/or received, before the commencement of the Lawsuit, the
particular HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES ONLY
information sought to be disclosed to that witness. Any witness testifying in a deposition
or hearing may be shown HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’
EYES ONLY information of a Producing Party provided that the witness is: (a) a current
employee, attorney, director, officer, or agent of the Producing Party, or a corporate
designee of the Producing Party under Rule 30(b)(6) of the Federal Rules of Civil
Procedure; or (b) a former employee, attorney, director, officer, or agent of the Producing
Party if, at the time of the witness’ employment, the HIGHLY CONFIDENTIAL
INFORMATION - ATTORNEYS’ EYES ONLY information was in existence and the
witness had access

to such HIGHLY CONFIDENTIAL INFORMATION

-

ATTORNEYS’ EYES ONLY information;
7.

litigation support vendors retained by outside counsel for such functions as

photocopying, scanning, stenography, videography, imaging, or preparation of graphics,

14

demonstratives, and audio and/or video productions or other exhibits for deposition, trial,
or other court proceedings in the Lawsuit, but only if they execute the Confidentiality
Undertaking in Exhibit A, and only to the extent necessary for the particular litigation
support services being rendered and in accordance with the vendor’s ordinary operating
procedure;
8.

mock jurors, trial consultants, and jury consultants engaged by the Parties in

preparation for trial, provided that (i) no Party will use any mock juror, trial consultant, or
jury consultant who is employed or affiliated with or who knows any person employed by
or affiliated with either Party to the Lawsuit; (ii) mock jurors, trial consultants, and jury
consultants will not be allowed to retain any tangible materials that contain or disclose any
Designated Material; and (iii) any such persons first execute the Confidentiality
Undertaking in Exhibit A; and
9.

persons who have been retained by a Party to provide translation or

interpretation from one language to another, provided that such translators execute the
Confidentiality Undertaking in Exhibit A.
C.

Unless otherwise directed by the Court or authorized in writing by the Producing

Party, Discovery Material designated as HIGHLY CONFIDENTIAL INFORMATION –
OUTSIDE ATTORNEYS’ EYES ONLY may be disclosed by the Receiving Party only to the
following persons:
1.

counsel of record for the Receiving Party, including their regularly employed

support staff (law clerks, paralegals, secretaries, and clerical staff) assisting with the
Lawsuit;

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2.

Judges, Magistrate Judges, law clerks, and clerical personnel of the Court

before which the Lawsuit is pending including any appellate Court, and the jury, if any;
3.

court reporters and other persons involved in recording or transcribing hearings,

trial testimony, or deposition testimony in the Lawsuit;
4.

consultants (not including trial and jury consultants), or experts and their staff

who are expressly retained or sought to be retained by an attorney described in subparagraph 1 or 2 of Section V.A to provide assistance in the Lawsuit, provided that any
such persons first execute the Confidentiality Undertaking in Exhibit A. Disclosures under
this sub-paragraph are to be made only to the extent necessary to perform such work;
5.

any person who authored and/or received, before the commencement of the

Lawsuit, the particular HIGHLY CONFIDENTIAL INFORMATION – OUTSIDE
ATTORNEYS’ EYES ONLY information sought to be disclosed to that person, or any
witness testifying in a deposition or hearing when the examining attorney has a good faith
basis to believe the witness is the author and/or received, before the commencement of the
Lawsuit, the particular HIGHLY CONFIDENTIAL INFORMATION – OUTSIDE
ATTORNEYS’ EYES ONLY information sought to be disclosed to that witness. Any
witness testifying in a deposition or hearing may be shown HIGHLY CONFIDENTIAL
INFORMATION – OUTSIDE ATTORNEYS’ EYES ONLY information of a Producing
Party provided that the witness is: (a) a current employee, attorney, director, officer, or
agent of the Producing Party, or a corporate designee of the Producing Party under Rule
30(b)(6) of the Federal Rules of Civil Procedure; or (b) a former employee, attorney,
director, officer, or agent of the Producing Party if, at the time of the witness’ employment,
the HIGHLY CONFIDENTIAL INFORMATION – OUTSIDE ATTORNEYS’ EYES

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ONLY information was in existence and the witness had access to such HIGHLY
CONFIDENTIAL INFORMATION – OUTSIDE ATTORNEYS’ EYES ONLY
information;
6.

litigation support vendors retained by outside counsel for such functions as

photocopying, scanning, stenography, videography, imaging, or preparation of graphics,
demonstratives, and audio and/or video productions or other exhibits for deposition, trial,
or other court proceedings in the Lawsuit, but only if they execute the Confidentiality
Undertaking in Exhibit A, and only to the extent necessary for the particular litigation
support services being rendered and in accordance with the vendor’s ordinary operating
procedure;
7.

mock jurors, trial consultants, and jury consultants engaged by the Parties in

preparation for trial, provided that (i) no Party will use any mock juror, trial consultant, or
jury consultant who is employed or affiliated with or who knows any person employed by
or affiliated with either Party to the Lawsuit; (ii) mock jurors, trial consultants, and jury
consultants will not be allowed to retain any tangible materials that contain or disclose any
Designated Material; and (iii) any such persons first execute the Confidentiality
Undertaking in Exhibit A; and
8.

persons who have been retained by a Party to provide translation or

interpretation from one language to another, provided that such translators execute the
Confidentiality Undertaking in Exhibit A.
VI.

COURT PROCEDURES
Designated Material may be included with, or referred to in, papers filed with the Court in

the Lawsuit only in accordance with the following procedures:

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Any documents (including briefs), tangible things, or information designated as (or
including

information

CONFIDENTIAL

designated

INFORMATION

as)
–

CONFIDENTIAL
ATTORNEYS’

INFORMATION,

EYES

ONLY,

or

HIGHLY
HIGHLY

CONFIDENTIAL INFORMATION – OUTSIDE ATTORNEYS’ EYES ONLY that are
submitted to the Court in support of or in opposition to a motion or introduced at a hearing or
during trial must be accompanied by a motion to seal such documents, things, or information
pursuant to Judge Schofield's Rule I.D.3. The Parties acknowledge that such documents, tangible
things, or information may retain their protected confidential status only by order of the Court in
accordance with Judge Schofield’s Rule I.D.3.
VII.

PROCEDURE FOR DISCLOSURES TO OTHER PERSONS
At the written request of the Receiving Party, the Producing Party may agree in writing to

allow the Receiving Party to disclose to a specified third party any of the Producing Party’s
Designated Material identified in the written request.
VIII. UNINTENTIONAL FAILURE TO DESIGNATE
If any Producing Party discovers that it has inadvertently failed to designate and mark any
Discovery Material as CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL
INFORMATION

–

ATTORNEYS’

EYES

ONLY,

or

HIGHLY

CONFIDENTIAL

INFORMATION – OUTSIDE ATTORNEYS’ EYES ONLY, the Producing Party may
subsequently inform the Receiving Party of the confidential nature of the disclosed Designated
Material, and the Receiving Party shall treat the disclosed Discovery Material as CONFIDENTIAL
INFORMATION, HIGHLY CONFIDENTIAL INFORMATION - ATTORNEYS’ EYES ONLY,
or HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE ATTORNEYS’ EYES ONLY upon
receipt of written notice from the Producing Party. Disclosure of such Discovery Material to

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persons not authorized to receive that material prior to receipt of the confidentiality designation
shall not be deemed a violation of this Order.
However, in the event the material has been distributed in a manner inconsistent with the
later-applied designation, the Receiving Party will take the steps necessary to conform distribution
to the categorical designation, i.e., by retrieving all copies of the Discovery Material, or notes or
extracts thereof, in the possession of the persons not authorized under this Order to possess such
Discovery Material and advising the persons to whom disclosure was made that the Producing
Party has designated the material as confidential and that such material must be treated as provided
in the Order unless otherwise agreed by the Parties or ordered by the Court.
IX.

UNINTENTIONAL DISCLOSURE OF ATTORNEY-CLIENT OR WORK
PRODUCT MATERIAL
Pursuant to Federal Rule of Evidence 502(d) and (e), the production of any Discovery

Material by any Party, whether inadvertent or not, shall be without prejudice to any subsequent
claim by the Producing Party that such Discovery Material is protected by the attorney-client
privilege, attorney work product doctrine, or any other applicable privilege, and shall not be deemed
a waiver of any such privilege or protection in either the litigation pending before the court, or any
other federal or state proceeding.
The Producing Party may give written notice to the Receiving Party that the document is
subject to a claim of attorney-client privilege, or work product immunity and request that the
document be destroyed or returned to the Producing Party. Unless the Producing Party claims that
the entire document is subject to a claim of attorney-client privilege, work product doctrine, or any
other applicable privilege, the Producing Party shall, together with its written notice, produce a
new copy of the document with the claimed privileged material redacted.

19

Within five (5) business days of receiving written notice and a copy of the document with
claimed privileged material redacted, the Receiving Party shall return or destroy all copies of such
document, along with any notes or other work product reflecting the contents of such document,
and shall destroy all excerpts thereof. Upon request of the Producing Party, the Receiving Party of
the inadvertent production shall provide an affidavit to the Producing Party that all copies and
excerpts, along with any notes or other work product reflecting the contents of such document, were
returned or destroyed, including from any litigation-support or other database. No use shall be made
of such materials during depositions or at trial or other court proceeding, nor shall they be disclosed
to anyone who was not given access to them before the request to return or destroy.
Return or destruction of the document by the Receiving Party shall not constitute an
admission or concession, or permit any inference, that the returned document is, in fact, properly
subject to a claim of attorney-client privilege, work product doctrine, or other applicable privilege.
If the Receiving Party believes that the document is not subject to the protections of the attorneyclient privilege, work product doctrine, or other applicable privilege, the Receiving Party will
contact counsel for the Producing Party within five (5) business days of receiving written notice
from the Producing Party that the document is subject to a claim of attorney-client privilege, work
product doctrine, or other applicable privilege so that the Parties’ counsel may meet and confer on
the matter. If the Parties cannot resolve the dispute, they will jointly request an in-camera review
of the materials in question by the Court.
The Parties agree that employing electronic keyword searching to identify and prevent
disclosure of privileged material constitutes “reasonable steps to prevent disclosure” under Federal
Rule of Evidence 502(b)(2).

20

Unless previously waived, the inadvertent disclosure of any documents subject to a
privilege or immunity shall not be deemed a waiver of that privilege or immunity as to any other
documents, testimony, or evidence.
X. RESERVATION OF RIGHTS AND MISCELLANEOUS PROVISIONS
A.

No Limitation of Other Rights

This Order shall be without prejudice to the right of any Party to oppose production of any
information on any and all grounds other than confidentiality.
B.

Release From or Modification of This Order

This Order is entered into without prejudice to the right of any Party to apply to the Court
at any time for additional protection, or to release, rescind, or modify the restrictions of this Order,
to determine whether a particular person shall be entitled to receive any particular information or
to seek relief from inadvertent disclosure of privileged or work-product information. This Order
does not preclude all of the Parties to this Order from entering into any stipulation (in writing or
on the record) constituting a modification of this Order, subject to the Court’s review.
C.

Admissibility and No Admissions

Nothing herein shall be construed to affect in any way the evidentiary admissibility or
relevance of any document, testimony, or other matter at any court proceeding related to this
matter. Neither designation or lack of designation of documents or information as
“CONFIDENTIAL INFORMATION,” “HIGHLY CONFIDENTIAL INFORMATION ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE
ATTORNEYS’ EYES ONLY” nor agreeing to treat documents produced under those designations
pursuant to this Agreement constitutes any admission or acknowledgement that any such

21

documents or information do or do not constitute trade secrets or proprietary information or do or
do not enjoy any other legal status, and is inadmissible for any such purpose.
D.

Non-Party Request/Subpoena of Designated Material

If a Receiving Party receives a subpoena or other compulsory process from a non-party to
this Order seeking production or other disclosure of a Producing Party’s Designated Material, that
Receiving Party shall give written notice to outside counsel of record for the Producing Party (or,
if the Producing Party is not represented by counsel in this Lawsuit, to the Producing Party itself)
within ten (10) business days after receipt of the subpoena or other compulsory process identifying
the specific Designated Material sought and enclosing a copy of the subpoena or other compulsory
process. If the Producing Party timely seeks a protective order, the Receiving Party to whom the
subpoena or other compulsory process was issued or served shall not produce the Designated
Material requested prior to receiving a Court order or consent of the Producing Party. In the event
that Designated Material is produced to the non-party, such material shall be treated as Designated
Material pursuant to this Order.
E.

Counsel’s Right to Provide Advice

Nothing in this Order shall bar or otherwise restrict any counsel herein from rendering
advice to the counsel’s Party-client with respect to the Lawsuit, and in the course thereof, relying
upon an examination of Designated Material, provided, however, that in rendering such advice
and in otherwise communicating with the Party-client, the counsel shall not disclose any
Designated Material, nor the source of any Designated Material, to anyone not authorized to
receive such Designated Material pursuant to the terms of this Order.

22

F.

Privileged and Irrelevant Materials

Nothing in this Order shall be construed as requiring disclosure of privileged materials,
materials subject to protection under the work product doctrine, or materials which are otherwise
beyond the scope of permissible discovery.
G.

Notice

Transmission by overnight courier, facsimile or electronic mail is acceptable for all
notification purposes, provided that, with regard to electronic mail, all counsel of record are
included on the notification.
XI.

FINAL DISPOSITION
Unless otherwise agreed by the Parties in writing or ordered by the Court, within ninety

(90) days after the conclusion of the Lawsuit and all appeals, each Party shall:
A.

assemble and either turn over to counsel for the Producing Party or destroy all

Designated Material and all copies thereof, as well as all expert reports and expert work product
referencing Designated Material, and all copies thereof (although counsel for each Party may retain
one digital archival copy of any expert report and expert work product referencing Designated
Material, provided such digital archival copy is only accessible to those persons identified at
Section V.A.1, supra); and
B.

each Party’s counsel shall certify in writing that the procedures set forth above have

been completed.
XII.

TERMINATION
The termination of the Lawsuit shall not automatically terminate the effectiveness of this

Order, and persons subject to this Order shall be bound by the confidentiality obligations of this

23

Order until the Producing Party agrees otherwise in writing or this Court (or any other court or
competent jurisdiction) orders otherwise.
XIII. USE AT TRIAL OR OTHER COURT PROCEEDINGS
This Order is not intended to govern the use of Designated Material at the trial or other
court proceeding of the Lawsuit. Procedures governing the use of Designated Material at trial or
other court proceeding, if necessary, will be established by separate order, pursuant to application
by one or more of the Parties to the Court, or sua sponte pursuant to the Court’s own procedures,
and may be addressed at a pre-trial conference.
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.

24

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ZESTY PAWS LLC

)
Plaintiff/Counterclaim
)
Defendant,
)
v.
)
)
NUTRAMAX LABORATORIES, INC. and
) Civil Action No. 1:23-cv-10849
NUTRAMAX LABORATORIES VETERINARY
)
SCIENCES, INC.,
) JURY TRIAL DEMANDED
)
Defendants/Counterclaim )
Plaintiffs.
)
)
)
NUTRAMAX LABORATORIES, INC. and
)
NUTRAMAX LABORATORIES VETERINARY
)
SCIENCES, INC.
)
)
Third-Party Plaintiffs, )
v.
)
)
HEALTH AND HAPPINESS (H&H) US
)
INTERNATIONAL INCORPORATED,
)
)
Third-Party Defendant. )
EXHIBIT A
CONFIDENTIALITY UNDERTAKING
I,

, state that:

My business address is

.

My present employer and job description are
.
My relationship to the Parties to the above-captioned lawsuit is as follows

.

I have read and reviewed in its entirety the Protective Order (“Protective Order”) entered
in this matter.
I hereby agree to be bound by and comply with the terms of the Protective Order, and not
to disseminate or disclose any information subject to the Protective Order that I review or about
which I am told, to any person, entity, Party, or agency for any reason, except in accordance with
the terms of the Protective Order.
I understand that contempt sanctions may be entered for violation of this Protective Order
and further agree to submit to the jurisdiction of this Court for the purposes of enforcement of the
terms of this Protective Order.
DATED this

day of

, 20__.

Name

2