Barbera v. Grailed, Inc

Filing 51

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED. (Signed by Judge Lewis J. Liman on 3/12/2025) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT BARBERA,
Plaintiff,
Case No: 1:24-cv-03535-LJL
v.

Hon. Lewis J. Liman

GRAILED, LLC,
Defendant.

LEWIS J. LIMAN, United States District Judge:
WHEREAS all of the parties to this action (collectively, the “Parties,” and individually, a
“Party”) request that this Court issue a protective order pursuant to Federal Rule of Civil Procedure
26(c) to protect the confidentiality of certain nonpublic and confidential material that will be
exchanged pursuant to and during the course of discovery in this case;
WHEREAS, the Parties, through counsel, agree to the following terms;
WHEREAS, the Parties acknowledge that this Protective Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords only
extends to the limited information or items that are entitled, under the applicable legal principles,
to confidential treatment;
WHEREAS, the Parties further acknowledge that this Protective Order does not create
entitlement to file confidential information under seal; and
WHEREAS, in light of these acknowledgements, and based on the representations of the
Parties that discovery in this case will involve confidential documents, documents subject to the
attorney-client privilege, or information the public disclosure of which will cause harm to the
producing person and/or third party to whom a duty of confidentiality is owed, and to protect
against injury caused by dissemination of confidential documents and information, this Court finds
good cause for issuance of an appropriately tailored confidentiality order governing the pretrial
phase of this action;
IT IS HEREBY ORDERED that any person subject to this Protective Order—including
without limitation the parties to this action, their representatives, agents, experts and consultants,
all third parties providing discovery in this action, and all other interested persons with actual or
constructive notice of this Protective Order—shall adhere to the following terms:

1.
Any person subject to this Protective Order who receives from any other person
subject to this Protective Order any “Discovery Material” (i.e., information of any kind produced
or disclosed pursuant to and in course of discovery in this action) that is designated as
“Confidential” pursuant to the terms of this Protective Order (hereinafter “Confidential Discovery
Material”) 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 the public disclosure of which is either restricted by law or will
cause harm to the business, commercial, financial or personal interests of the producing person
and/or a third party to whom a duty of confidentiality is owed and that 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;
e. any information or documents subject to the attorney-client privilege;
f. any information or documents subject to confidentiality agreements with persons
or entities who are not parties to this action; or
g. any other category of information hereinafter given confidential status by the Court.
3.
With respect to the Confidential 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: (a) stamping or otherwise clearly marking as “Confidential” the
protected portion in a manner that will not interfere with legibility or audibility; and (b) producing
for future public use another copy of said Discovery Material with the confidential information
redacted.
4.
With respect to deposition transcripts, a producing person or that person’s counsel
may designate such portion as Confidential either by (a) indicating on the record during the
deposition that a question calls for Confidential information, in which case the reporter will bind
the transcript of the designated testimony (consisting of question and answer) 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 and/or the specific exhibits that are to be designated
Confidential, in which case all counsel receiving the transcript will be responsible for marking the
copies of the designated transcript or exhibit (as the case may be), in their possession or under their
control as directed by the producing person or that person’s counsel by the reporter. During the

30-day period following the conclusion of a deposition, the entire deposition transcript will be
treated as if it had been designated Confidential.
5.
If at any time prior to the trial of this action, a producing person realizes that some
portion(s) of Discovery Material that she, he, or it had previously produced without limitation
should be designated as Confidential, she, he, or it may so designate by so apprising all prior
recipients of the Discovery Material in writing, and thereafter such designated portion(s) of the
Discovery Material will thereafter be deemed to be and treated as Confidential under the terms of
this Protective Order.
6.
No person subject to this Protective 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, their insurers, and counsel to their insurers;
b. counsel retained specifically for this action, including any paralegal, clerical and
other assistant employed by such counsel and assigned to this matter;
c. outside vendors or service providers (such as copy-service providers and documentmanagement consultants, graphic production services or other litigation support
services) that counsel hire and assign to this matter, including computer service
personnel performing duties in relation to a computerized litigation system;
d. any mediator or arbitrator that the Parties engage in this matter or that this Court
appoints, provided such person has first executed a Non-Disclosure Agreement in
the form annexed as an Exhibit hereto;
e. as to any document, its author, its addressee, and any other person indicated on the
face of the document as having received a copy;
f. 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 NonDisclosure Agreement in the form annexed as an Exhibit hereto;
g. any person retained by a Party to serve as an expert witness or otherwise provide
specialized advice to counsel in connection with this action, provided such person
has first executed a Non-Disclosure Agreement in the form annexed as an Exhibit
hereto;
h. stenographers engaged to transcribe depositions conducted in this action; and
i. this Court, including any appellate court, and the court reporters and support
personnel for the same.
7.
Prior to any disclosure of any Confidential Discovery Material to any person
referred to in subparagraphs 6(d), 6(f) or 6(g) above, such person shall be provided by counsel
with a copy of this Protective Order and shall sign a Non-Disclosure Agreement in the form

annexed as Exhibit 1 hereto stating that that person has read this Protective Order and agrees to be
bound by its terms. Said counsel shall retain each signed Non-Disclosure Agreement, hold it in
escrow, and produce it to opposing counsel either prior to such person being permitted to testify
(at deposition or trial) or at the conclusion of the case, whichever comes first.
8.
Any Party who 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. If the Parties cannot reach agreement promptly, counsel
for all Parties will address their dispute to this Court in accordance with Paragraph 1(C) of this
Court’s Individual Practices in Civil Cases.
9.
Any Party who requests additional limits on disclosure (such as “attorneys’ eyes
only” in extraordinary circumstances) may at any time prior to the trial of this action serve upon
counsel for the receiving Party a written notice stating with particularity the grounds for the
request. If the Parties cannot reach agreement promptly, counsel for all Parties will address their
dispute to this Court in accordance with Paragraph 1(C) of this Court’s Individual Practices in
Civil Cases.
10.
A Party may be requested to produce Discovery Material that is subject to
contractual or other obligations of confidentiality owed to a third party. Within two business days
of receiving the request, the receiving Party subject to such obligation shall inform the third party
of the request and that the third party may seek a protective order or other relief from this Court.
If neither the third party nor the receiving Party seeks a protective order or other relief from this
Court within 21 days of that notice, the receiving Party shall produce the information responsive
to the discovery request but may affix the appropriate controlling designation.
11.
Recipients of Confidential Discovery Material under this Protective Order may use
such material solely for the prosecution and defense of this action and any appeals thereto, and
specifically (and by way of example and not limitations) may not use Confidential Discovery
Material for any business, commercial, or competitive purpose. Nothing contained in this
Protective Order, however, will affect or restrict the rights of any person with respect to its own
documents or information produced in this action. Nor does anything contained in this Protective
Order limit or restrict the rights of any person to use or disclose information or material obtained
independently from and not through or pursuant to the Federal Rules of Civil Procedure.
12.
Nothing in this Protective Order will prevent any person subject to it from
producing any Confidential Discovery Material in its 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, however, that such person receiving a request, will provide written notice
to the producing person before disclosure and as soon as reasonably possible, and, if permitted by
the time allowed under the request, at least 10 days before any disclosure. Upon receiving such
notice, the producing person will have the right to oppose compliance with the subpoena, other
compulsory process, or other legal notice if the producing person deems it appropriate to do so.
13.
All persons seeking to file redacted documents or documents under seal with the
Court shall follow Rule 2(H) of this Court’s Individual Practices in Civil Cases. No person may
file with the Court redacted documents or documents under seal without first seeking leave to file

such papers. All persons producing Confidential Discovery Material are deemed to be on notice
that the Second Circuit puts limitations on the documents or information that may be filed in
redacted form or under seal and that the Court retains discretion not to afford confidential treatment
to any Confidential Discovery Material submitted to the Court or presented in connection with any
motion, application or proceeding that may result in an order and/or decision by the Court unless
it is able to make the specific findings required by law in order to retain the confidential nature of
such material. Notwithstanding its designation, there is no presumption that Confidential
Discovery Material will be filed with the Court under seal. The Parties will use their best efforts
to minimize such sealing.
14.
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
or supporting or refuting any motion for summary judgment, even if such material has previously
been sealed or designated as Confidential.
15.
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.
16.
Each person who has access to Discovery Material that has been designated as
Confidential shall take all due precautions to prevent the unauthorized or inadvertent disclosure of
such material.
17.
Any Personally Identifying Information (“PII”) (e.g., social security numbers,
financial account numbers, passwords, and information that may be used for identity theft)
exchanged in discovery shall be maintained by the persons who receive such information and are
bound by this Protective Order in a manner that is secure and confidential. In the event that the
person receiving PII experiences a data breach, she, he, or it shall immediately notify the producing
person of the same and cooperate with the producing person to address and remedy the breach.
Nothing herein shall preclude the producing person from asserting legal claims or constitute a
waiver of legal rights or defenses in the event of litigation arising out of the receiving person’s
failure to appropriately protect PII from unauthorized disclosure.
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,” and all
copies thereof, shall be promptly returned to the producing person, or, upon permission of the
producing person, destroyed.
19.
All persons subject to this Protective Order acknowledge that willful violation of
this Protective Order could subject them to punishment for contempt of Court. This Court shall
retain jurisdiction over all persons subject to this Protective Order to the extent necessary to
enforce any obligations arising hereunder or to impose sanctions for any contempt thereof.

SO STIPULATED AND AGREED:
SANDERS LAW GROUP

MITCHELL SILBERBERG & KNUPP LLP

By:
/s/ Jonathan M. Cader
Jonathan M. Cader, Esq.
333 Earle Ovington Blvd, Suite 402
Uniondale, NY 11553
Tel: [phone]
Email: [e-mail]
File No.: 126004
Attorneys for Plaintiff

By: /s/ Andrew Nietes
Eleanor M. Lackman
Andrew Nietes
437 Madison Ave., 25th Floor
New York, New York 10022-7001
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant Grailed, LLC

SO ORDERED
Dated: March 12, 2025
New York, New York
______________________________
LEWIS J. LIMAN
UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT BARBERA,
Plaintiff,
Case No: 1:24-cv-03535-LJL
v.

Hon. Lewis J. Liman

GRAILED, LLC,

NON-DISCLOSURE AGREEMENT
Defendant.

LEWIS J. LIMAN, United States District Judge:
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. 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 either return all discovery information to the party or attorney
from whom I received it, or upon permission of the producing party, destroy such discovery
information. 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: ______________

___________________________________