Broadcast Music, Inc. v. Sirius XM Radio LLC

Filing 41

STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...This confidentiality agreement does not bind the Court or any of its personnel. The Court can modify this stipulation a t any time. The Court will retain jurisdiction over the terms and conditions of this agreement only for the pendency of this litigation. Any party wishing to make redacted or sealed submissions shall comply with Rule 9 of this Court's Individual Rules of Civil Procedure. (Signed by Judge Katherine Polk Failla on 1/29/2025) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BROADCAST MUSIC, INC.,
24 Civ. 6896 (KPF)
Petitioner,
Related to United States v. Broadcast
Music, Inc., 64 Civ. 3787 (LLS)

v.
SIRIUS XM RADIO LLC f/k/a SIRIUS XM
RADIO INC.,
Respondent.

STIPULATION AND PROTECTIVE ORDER
WHEREAS, certain documents and information may be sought, produced, exhibited, or
otherwise disclosed in the above-captioned action (the “Action”), which relate to the parties’
financial information, competitive information, personnel information, or other kinds of
commercially sensitive information that the party making the disclosure deems confidential; and
WHEREAS, it has been agreed by the parties to this Action, through their respective
counsel, that a protective order preserving the confidentiality of certain documents and information
should be entered by the United States District Court for the Southern District of New York;
IT IS HEREBY STIPULATED AND AGREED THAT the provisions of this Stipulation
and Protective Order (the “Protective Order”) shall govern all Discovery Material (as defined
below) produced, exhibited, or otherwise disclosed during this Action.
1.

DEFINITIONS
1.1

“Acknowledgement” means the Acknowledgement and Agreement to be Bound by

the Protective Order set forth at Exhibit A to this Protective Order.
1.2

“Action” means the above-captioned action.

1.3

“Applicable Rules” means the applicable provisions of the Federal Rules of Civil

Procedures, the Local Civil Rules of the United States District Court for the Southern District of

New York, and the Court’s Individual Rules of Practice in Civil Cases, as well as any other
applicable rules of any appellate court in any appeal of this Action or orders entered by the Court
or any appellate court in this Action.
1.4
Party:

“Confidential” Information means any Discovery Material that the Supplying

(1) reasonably and in good faith believes contains or would disclose non-public,

confidential, personal, proprietary, financial, customer, client or commercially sensitive
information, confidential trade secrets, or non-public research that is entitled to confidential
treatment under Federal Rule of Civil Procedure 26(c)(1)(G); and (2) designates as
“CONFIDENTIAL” pursuant to this Protective Order.
1.5

“Designated Material” means any Discovery Material that is designated as

“CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” pursuant
to this Protective Order.
1.6

“Discovery Material” means all information of any kind produced, exhibited, or

otherwise disclosed in this Action, including, without limitation, documents, ESI, written
discovery responses, deposition testimony or other testimony, deposition exhibits, and the
information contained in any of the foregoing. Information copied or extracted from Discovery
Material, as well as all copies, excerpts, summaries, or compilations thereof, shall constitute
Discovery Material for the purposes of this Protective Order.
1.7

“ESI”, an abbreviation of “electronically stored information,” is synonymous in

meaning and equal in scope to the usage of the term in Federal Rule of Civil Procedure 34(a)(1)(A).
1.8

“Expert” means a person who is not an owner, director, officer, or employee of a

Party, who is actually assisting a Party in this Action by serving as an expert witness or as a
consultant with respect to this Action, as well as employees, staff, and other personnel supporting
such person or working under such person’s direction.
1.9

“Highly Confidential” Information means Confidential Information that the

Supplying Party: (1) reasonably and in good faith believes constitutes and/or contains trade secrets
or other extremely sensitive confidential and/or proprietary information the disclosure of which,

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even if limited to the persons to whom disclosure of Confidential Information is permitted under
paragraph 4.1 of this Protective Order, may materially compromise and/or jeopardize the
commercial, financial, strategic, or business interests of such Supplying Party or its personnel,
clients, or customers; and (2) designates as “HIGHLY CONFIDENTIAL” pursuant to this
Protective Order.
1.10

“In-House Counsel” means attorneys employed by a Party who are actually

assisting in this Action and other legal department personnel, employees, and contract staff
working under the direction of such attorneys in connection with this Action (including paralegals,
stenographic, clerical, and litigation support services personnel).
1.11

“Objecting Party” means a Party who serves a written objection pursuant to

paragraph 5.2 of this Protective Order.
1.12

“Outside Counsel” means attorneys who are not employees of a Party but who are

retained to represent or advise a Party in this Action and who are actually assisting in this Action,
and other personnel, employees, and contract staff of such attorneys or their law firms working
under the direction of such attorneys in connection with this Action (including paralegals,
stenographic, clerical, and litigation support services personnel).
1.13

“Outside Counsel Only” Information means Confidential Information that the

Supplying Party: (1) reasonably and in good faith believes constitutes and/or contains trade secrets
or other extremely sensitive confidential research, development, strategic, proprietary, or
commercially sensitive information the disclosure of which, even if limited to the persons to whom
disclosure of Confidential or Highly Confidential Information is permitted under paragraphs 4.1
or 4.2 of this Protective Order, may materially compromise and/or jeopardize the commercial,
financial, strategic, or business interests of such Supplying Party or its personnel, clients, or
customers; and (2) designates as “OUTSIDE COUNSEL ONLY” pursuant to this Protective
Order.
1.14

“Party” or “Parties” refers individually or collectively to the named Petitioner and

named Respondent in this Action.

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1.15

“Privileged Material” means documents or information that is protected from

disclosure under the attorney-client privilege, the work product doctrine, or any other applicable
privilege, protection, exemption, or immunity.
1.16

“Professional Vendors” means persons or entities that are not employed by a Party

or Outside Counsel to that Party (or the law firm with which Outside Counsel is associated), but
which provide litigation support services to that Party or Outside Counsel to that Party (e.g.,
photocopying; videotaping; translating; data processing; preparing graphics, exhibits, or
demonstrations; organizing, storing, or retrieving data in any form or medium) and their employees
and subcontractors.
1.17

“Receiving Party” means any person or entity that receives Discovery Material in

this Action, subject to the provisions of this Protective Order.
1.18

“Redesignated Material” means Discovery Material the confidentiality designation

of which is designated, redesignated, or withdrawn following its production, exhibition, or
disclosure in this Action pursuant to paragraph 3.3 of this Protective Order.
1.19

“Requesting Party” means a Party who serves a written request pursuant to

paragraph 5.1 of this Protective Order.
1.20

“Supplying Party” means any person or entity that produces, exhibits, or otherwise

discloses Discovery Material in this Action, subject to the provisions of this Protective Order. A
Party is a Supplying Party with respect to a deposition in this Action of: (i) any witness with which
that Party is associated (including any witness that is a present or former owner, director, officer,
employee, partner, representative, or Expert of that Party); and (ii) any other witness during whose
deposition that Party’s Confidential, Highly Confidential, or Outside Counsel Only Information is
disclosed or exhibited. A nonparty that is not associated with a Party and elects to avail itself of,
and agrees to be bound by, the terms and conditions of this Protective Order, is a Supplying Party
with respect to a deposition in this Action of such nonparty, and if such nonparty is an entity, with
respect to a deposition of a witness associated with such nonparty entity (i.e., a witness testifying

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in his or her capacity as a present owner, director, officer, employee, partner, or representative of
such nonparty entity).
2.

SCOPE AND LIMITATIONS
2.1

Scope.

This Protective Order shall govern all Discovery Material produced,

exhibited, or otherwise disclosed in this Action. This Protective Order is binding upon the
undersigned Parties, including their respective corporate parents, subsidiaries, and affiliates and
their respective attorneys, agents, representatives, officers, and employees, and others as set forth
in this Protective Order. Subpoenaed nonparties who so elect may avail themselves of, and agree
to be bound by, the terms and conditions of this Protective Order and thereby become a Supplying
Party for purposes of this Protective Order.
2.2

Limitations and No Waiver. Nothing in this Protective Order is intended to limit a

Requesting Party’s right to seek, or a Supplying Party’s right to object to, discovery pursuant to
applicable law or the Applicable Rules or to affect in any manner the admissibility at trial or
otherwise of any Discovery Material. Production pursuant to this Protective Order shall not be
deemed a waiver of the status of any Discovery Material as a trade secret or any applicable claim
of privilege, protection, exemption, or immunity from disclosure, or any Party’s right to contest
such a claim.
3.

DESIGNATING DISCOVERY MATERIAL AS DESIGNATED MATERIAL
3.1

General. Any Supplying Party shall have the right to identify and designate,

through counsel, as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, or “OUTSIDE
COUNSEL ONLY” any Discovery Material it produces or discloses in this Action that the
Supplying Party reasonably and in good faith believes constitutes, reflects, or discloses its
Confidential, Highly Confidential, or Outside Counsel Only Information, pursuant to the
parameters set forth in this Protective Order. Any Discovery Material provided or disclosed in
this Action for inspection shall be treated by the Receiving Party presumptively as Confidential

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Information (unless informed at the inspection that a higher designation applies) pending the
copying and delivery of any copies of the same by the Supplying Party to the Receiving Party.
3.2

Manner and Timing of Designations Generally. Subject to paragraph 3.3 and

except as otherwise provided in this Protective Order or as otherwise agreed upon in writing by
the Parties or ordered by the Court, a Supplying Party shall designate Discovery Material for
protection under this Protective Order by clearly designating such Discovery Material as
Designated Material before it is produced, exhibited, or otherwise disclosed in this Action. The
Supplying Party may designate Discovery Material as “CONFIDENTIAL”, “HIGHLY
CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” as follows:
3.2.1

Documents and Written Discovery Responses. Documents and written

discovery responses (whether formal or informal) containing Confidential, Highly Confidential,
or Outside Counsel Only Information shall be designated as such by imprinting the legend
“CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” on each
page or next to or above any response containing such Confidential, Highly Confidential, or
Outside Counsel Only Information. If it is not feasible to imprint such legend on each such page
or next to or above any such response, such legend shall be imprinted on at least the first page of
the document or response.
3.2.2

ESI. ESI containing Confidential, Highly Confidential, or Outside Counsel

Only Information shall be designated as such, whenever possible, as provided in paragraph 3.2.1.
If ESI is not susceptible to being designated as “CONFIDENTIAL”, “HIGHLY
CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” as provided in paragraph 3.2.1, it shall be
designated as such by: (1) including the appropriate confidentiality designation in the metadata
associated with the ESI file; (2) affixing the appropriate confidentiality designation legend on the
single-page placeholder TIFF image associated with the ESI file in compliance with paragraph
3.2.1; (3) altering the file name of the native ESI file to indicate its confidentiality (e.g., “Conf.”,
“HighlyConf.” or “OutsideCounsel”); and/or (4) including a statement in the transmittal cover
letter accompanying its production that such ESI is designated as “CONFIDENTIAL”, “HIGHLY

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CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY”. If a Receiving Party prints out ESI that
is Designated Material but that does not contain the appropriate confidentiality designation legend
on the print-out, the Receiving Party shall affix the appropriate legend associated with that ESI as
provided in paragraph 3.2.1.
3.2.3

Depositions. By default, all information disclosed at a deposition taken in

connection with this Action, and all deposition transcripts, recordings, and exhibits, presumptively
shall be treated as Confidential Information subject to this Protective Order during the deposition
and until thirty (30) calendar days following receipt by Outside Counsel for each of the Parties of
the final transcript of such deposition, unless a higher confidentiality designation is requested as
provided in this paragraph 3.2.3 or otherwise agreed to by the Parties in writing. Subject to the
parameters set forth in this Protective Order, a Supplying Party with respect to a deposition taken
in connection with this Action may designate information disclosed or exhibited at that deposition
as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” by:
(a)

designating the testimony or any exhibit as “CONFIDENTIAL”, “HIGHLY
CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” on the record during
the taking of the deposition, in which case the court reporter and video operator
(as applicable) shall mark the transcript, recording, and/or exhibit, or each such
page, line, or portion thereof so designated, as provided in paragraphs 3.2.1 and
3.2.2, as applicable; or

(b)

providing written notice (which shall include email) to Outside Counsel for all
other Parties (and, if applicable, any other Supplying Party) within thirty (30)
calendar days of receipt of the final transcript of the deposition (or such other
time period that is agreed upon in writing by the Parties) of its designation of
the deposition, specific pages, lines, or portions of the transcript or recording
thereof, or any exhibit thereto as “CONFIDENTIAL”, “HIGHLY
CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY”, whereupon each
recipient of such notice shall attach a copy of such written designation to the

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face of any transcript or recording of the deposition, or any exhibit thereto, and
each copy thereof in that recipient’s possession, custody, or control. Any
deposition testimony or exhibit so designated as “CONFIDENTIAL”,
“HIGHLY CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” pursuant to
this paragraph thereafter shall be treated as such in accordance with this
Protective Order. If any deposition testimony or exhibit is not designated within
the prescribed time period (or such other time period that is agreed upon in
writing by the Parties), then such testimony or exhibit shall not be deemed
“CONFIDENTIAL”,

“HIGHLY

CONFIDENTIAL”,

or

“OUTSIDE

COUNSEL ONLY”, except as agreed upon in writing by the Parties, ordered
by the Court, or as otherwise provided in this Protective Order.
3.3

Redesignation of Discovery Material.

Production of any Discovery Material

without a confidentiality designation will not be deemed to waive a later claim to its confidential
nature or restrict the Supplying Party from designating said Discovery Material as
“CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” at a later
date.
3.3.1

Any Supplying Party may designate or redesignate any Discovery Material

it produced, exhibited, or otherwise disclosed in this Action as “CONFIDENTIAL”, “HIGHLY
CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” or withdraw any such designation
(“Redesignated Material”); provided, however, that (1) such redesignation shall be effective only
as of the date of such redesignation; and (2) any disclosure of such Redesignated Material by any
Receiving Party prior to the date of such redesignation and in a manner permitted under the
provisions of this Protective Order governing such disclosure at that time shall not be deemed a
violation of the provisions of this Protective Order.
3.3.2 Redesignation (whether a new designation, an upward designation, a
downward designation, or a withdrawal of a prior designation) shall be accomplished by providing
written notice (which shall include email) to Outside Counsel for each Party of such redesignation

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(or withdrawal) and identifying therein (by Bates number or other individually identifiable
information) the Discovery Material to be re-designated. Upon receipt of any such written notice
of redesignation, Outside Counsel for any Receiving Party shall: (1) not make any further
disclosure or communication of such Redesignated Material except as provided for in this
Protective Order; (2) take reasonable steps to notify any persons known to have possession of any
such Redesignated Material of the treatment of such material required under this Protective Order
pursuant to the redesignation; and (3) promptly endeavor to procure all copies of such
Redesignated Material from any persons known to have possession of any such Redesignated
Material who are not entitled to receipt of the same under the applicable provisions of this
Protective Order governing the disclosure of the Redesignated Material (i.e., paragraphs 4.1, 4.2,
or 4.3).
3.3.3

Any Party may object to a new designation or the upward designation of

Discovery Material pursuant to the procedures set forth in Section 5 of this Protective Order.
4.

ACCESS TO AND USE OF DESIGNATED MATERIAL
4.1

Confidential Information.

A Receiving Party may disclose Confidential

Information only to the following persons:
(a)

The Receiving Party’s Outside Counsel to whom disclosure is reasonably
necessary for the purposes of this Action;

(b)

The Receiving Party’s In-House Counsel to whom disclosure is reasonably
necessary for the purposes of this Action, provided that such In-House Counsel
has first executed the Acknowledgment;

(c)

The Receiving Party’s and its Outside Counsel’s Professional Vendors to whom
disclosure is reasonably necessary for the purposes of this Action, provided that
each such Professional Vendor has first executed the Acknowledgment;

(d)

The Receiving Party’s directors, officers, and employees to whom disclosure is
reasonably necessary for the purposes of this Action, provided that each such

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person has first executed the Acknowledgment;
(e)

Subject to the further provisions of paragraph 4.7, any Expert to whom
disclosure is reasonably necessary for the purposes of this Action, provided that
each such Expert has first executed the Acknowledgment;

(f)

The Court in this Action, including any magistrate judge, any appellate court in
this Action, and any court-appointed mediator or any mediator agreed to by the
Parties in writing, and any members of their respective staffs to whom
disclosure is reasonably necessary for the purposes of this Action, provided that,
with respect to any mediator agreed to by the Parties, such mediator has first
executed the Acknowledgment;

(g)

Professional court reporters and video operators transcribing or recording
testimony relating to this Action, and members of their respective staffs to
whom disclosure is reasonably necessary for the purposes of this Action;

(h)

The authors or recipients of the Designated Material (including those identified
as author(s), addressee(s), or recipient(s) on the Discovery Material or its
corresponding metadata), or any other natural person who reviewed or had
access to such Designated Material during his or her employment as a result of
the substantive nature of his or her employment position;

(i)

During the course of a deposition, to any witness who is a current director,
officer, or employee of the Supplying Party or any Receiving Party, provided
that, with respect to any current director, officer, or employee of any Receiving
Party, such person has first executed the Acknowledgment;

(j)

Any other person or entity with the express authorization of the Supplying
Party; and

(k)

Any other person or entity who, upon motion to the Court after reasonable
written notice to all affected Parties and where applicable, any other Supplying
Party, or upon application made by a Party (including by application made in

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the course of a deposition where the ability to show such material to the
deponent is in issue), the Court orders may have access.
4.2

Highly Confidential Information. The Parties recognize that there may be certain

discrete categories of Discovery Material, or portions thereof, that constitute Highly Confidential
Information. A Receiving Party may disclose Highly Confidential Information only to the
following persons:
(a)

The Receiving Party’s Outside Counsel to whom disclosure is reasonably
necessary for the purposes of this Action;

(b)

The Receiving Party’s In-House Counsel to whom disclosure is reasonably
necessary for the purposes of this Action, provided that such In-House Counsel
has first executed the Acknowledgment;

(c)

The Receiving Party’s and its Outside Counsel’s Professional Vendors to whom
disclosure is reasonably necessary for the purposes of this Action, provided that
each such Professional Vendor has first executed the Acknowledgment;

(d)

Subject to the further provisions of paragraph 4.7, any Expert to whom
disclosure is reasonably necessary for the purposes of this Action, provided that
each such Expert has first executed the Acknowledgment;

(e)

The Court in this Action, including any magistrate judge, any appellate court in
this Action, and any court-appointed mediator or any mediator agreed to by the
Parties in writing, and any members of their respective staffs to whom
disclosure is reasonably necessary for the purposes of this Action, provided that,
with respect to any mediator agreed to by the Parties, such mediator has first
executed the Acknowledgment;

(f)

Professional court reporters and video operators transcribing or recording
testimony relating to this Action, and members of their respective staffs to
whom disclosure is reasonably necessary for the purposes of this Action;

(g)

The authors or recipients of the Designated Material (including those identified

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as author(s), addressee(s), or recipient(s) on the Discovery Material or its
corresponding metadata), or any other natural person who reviewed or had
access to such Designated Material during his or her employment as a result of
the substantive nature of his or her employment position;
(h)

During the course of a deposition, to any witness who is a current director,
officer, or employee of the Supplying Party;

(i)

Any other person or entity with the express authorization of the Supplying
Party; and

(j)

Any other person or entity who, upon motion to the Court after reasonable
written notice to all affected Parties and where applicable, any other Supplying
Party, or upon application made by a Party (including by application made in
the course of a deposition where the ability to show such material to the
deponent is in issue), the Court orders may have access.

4.3

Outside Counsel Only Information.

The Parties recognize that, in limited

circumstances, there may be certain discrete categories of Discovery Material, or portions thereof,
that constitute Outside Counsel Only Information. A Receiving Party may disclose Outside
Counsel Only Information only to the following persons:
(a)

The Receiving Party’s Outside Counsel to whom disclosure is reasonably
necessary for the purposes of this Action;

(b)

The Receiving Party’s and its Outside Counsel’s Professional Vendors to whom
disclosure is reasonably necessary for the purposes of this Action, provided that
each such Professional Vendor has first executed the Acknowledgment;

(c)

Subject to the further provisions of paragraph 4.7, any Expert to whom
disclosure is reasonably necessary for the purposes of this Action, provided that
such Expert has first executed the Acknowledgment;

(d)

The Court in this Action, including any magistrate judge, any appellate court in
this Action, and any court-appointed mediator or any mediator agreed to by the

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Parties in writing, and any members of their respective staffs to whom
disclosure is reasonably necessary for the purposes of this Action, provided that,
with respect to any mediator agreed to by the Parties, such mediator has first
executed the Acknowledgment;
(e)

Professional court reporters and video operators transcribing or recording
testimony relating to this Action, and members of their respective staffs to
whom disclosure is reasonably necessary for the purposes of this Action;

(f)

The authors or recipients of the Designated Material (including those identified
as author(s), addressee(s), or recipient(s) on the Discovery Material or its
corresponding metadata), or any other natural person who reviewed or had
access to such Designated Material during his or her employment as a result of
the substantive nature of his or her employment position;

(g)

During the course of a deposition, to any witness who is a current director,
officer, or employee of the Supplying Party;

(h)

Any other person or entity with the express authorization of the Supplying
Party; and

(i)

Any other person or entity who, upon motion to the Court after reasonable
written notice to all affected Parties and where applicable, any other Supplying
Party, or upon application made by a Party (including by application made in
the course of a deposition where the ability to show such material to the
deponent is in issue), the Court orders may have access.

4.4

Persons having knowledge of Confidential, Highly Confidential, and/or Outside

Counsel Only Information by virtue of their participation in the conduct of this Action shall use
such Confidential, Highly Confidential, and/or Outside Counsel Only Information only in
connection with this Action and any appeal in this Action and shall neither: (1) use such
Confidential, Highly Confidential, and/or Outside Counsel Only Information for any other
purpose, including, without limitation, in connection with any other proceedings or unrelated

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negotiations, regardless of whether the Parties are parties to such other proceedings or
negotiations; nor (2) disclose any such (a) Confidential Information to any person who is not listed
in paragraph 4.1 of this Protective Order, (b) Highly Confidential Information to any person who
is not listed in paragraph 4.2 of this Protective Order, and/or (c) Outside Counsel Only Information
to any person who is not listed in paragraph 4.3 of this Protective Order, unless otherwise agreed
in writing by the Supplying Party, ordered by the Court, or as provided in Section 7 of this
Protective Order. Outside Counsel for a Receiving Party shall take all reasonable and necessary
steps to assure the security of any Confidential, Highly Confidential, and/or Outside Counsel Only
Information and to limit access to the same in accordance with the provisions of this Protective
Order. Outside Counsel Only Information produced or provided by any Supplying Party will be
kept in the Receiving Party’s Outside Counsel’s possession and/or in the possession of the
Receiving Party’s Experts or other persons entitled to receive copies of such Designated Material
pursuant to paragraph 4.3.
4.5

Artificial Intelligence Tools. Designated Material shall not be submitted to any

open Generative AI tool that is available to the public (e.g., ChatGPT) or any substantially similar
tool that is available to the public. Provision of Designated Material to any such open Generative
AI tool constitutes an unauthorized disclosure under this Protective Order. Any Receiving Party
that submits any Designated Material designated as such by a Supplying Party to a closed
Generative AI tool (for example, a Generative AI tool that it owns or licenses or is otherwise not
available to the general public) must ensure the closed Generative AI tool’s settings: (1) prevent
it from disclosing Designated Material to any third party to whom such disclosure is not authorized
under this Protective Order, including without limitation other users or developers of the
Generative AI tool; (2) prevent it from learning from the Designated Material to fine-tune itself or
for other purposes; and (3) allow for the deletion or destruction of any Designated Material
supplied to it or contained in responses generated by it. Provision of Designated Material to a
closed Generative AI tool that cannot be set to prevent disclosure to third parties to whom such
disclosure is not authorized under this Protective Order or to delete or otherwise destroy

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information submitted to it or generated by it constitutes an unauthorized disclosure under this
Protective Order. All professional court reporters and video operators who transcribe or record
testimony in this Action shall be informed of the restrictions imposed by this paragraph 4.5.
4.6

Acknowledgments. Prior to the disclosure of any Designated Material to any

person identified in paragraphs 4.1, 4.2, and/or 4.3 as being required to first execute an
Acknowledgement before receiving any such Designated Material, such person shall be provided
with a copy of this Protective Order, which he or she shall read and, upon reading, execute the
Acknowledgement in the form annexed hereto as Exhibit A, acknowledging that he or she has read
this Protective Order and shall abide by its terms. A file of all executed Acknowledgments shall
be maintained by Outside Counsel for the Party obtaining them and shall be made available, upon
request, for inspection by the Court in camera. Persons who come into contact with Designated
Material for clerical or administrative purposes pursuant to the direction of a person identified in
paragraphs 4.1, 4.2, and/or 4.3, and who do not retain copies or extracts thereof, are not required
to execute an Acknowledgement.
4.7

Disclosures to Certain Experts. Prior to the disclosure of any Designated Material

to any Expert, as identified in paragraphs 4.1(e), 4.2(d), and/or 4.3(c), who is currently employed
in-house by a music publisher or has been so employed in-house by a music publisher within the
six (6) month period preceding any such proposed disclosure, the Receiving Party desiring to
disclose such Designated Material to such Expert shall first disclose to the Supplying Party in
writing (which shall include email) the identity of the person(s) to whom the Receiving Party
wishes to disclose the Designated Material. The required disclosure shall contain the name, title,
and employment information of the Expert (or staff person), including current employer and any
past employers engaged in the identified industries. Upon receipt of the written notice, the
Supplying Party whose Designated Material is to be disclosed will have three (3) business days to
communicate in writing (which shall include email) the denial of permission for the requesting
Receiving Party to allow the identified person(s) to view the Designated Material. During that
time, such Designated Material shall not be disclosed to the person(s) in question. The lapse of

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the aforementioned three (3) business day period without the Supplying Party’s written denial of
the request to disclose shall operate as a grant of permission. Such permission shall not be
unreasonably withheld. If the Parties disagree as to whether any withholding of permission was
reasonable, the Parties shall promptly meet and confer in good faith in an effort to resolve the
disagreement. If the Parties are unable to resolve the dispute, the Supplying Party objecting to
disclosure may seek the Court’s assistance to resolve the matter by filing a pre-motion letter within
three (3) business days after the meet-and-confer process concludes, in accordance with the
Applicable Rules. Pending resolution of the dispute by the Court, the Designated Material in issue
shall continue to be withheld from the proposed Expert.
5.

CHALLENGES TO DESIGNATIONS AND ACCESS
5.1

Any Party may request at any time permission to disclose Designated Material (the

“Requesting Party”) to a person or entity other than those permitted under the applicable paragraph
of this Protective Order governing disclosure of such Designated Material (i.e., paragraph 4.1, 4.2,
or 4.3), or to use such information in a manner prohibited by this Protective Order, by serving a
written request (which shall include email) upon the Supplying Party’s counsel. Any such request
shall identify the Designated Material the Requesting Party wishes to disclose or use, to whom it
wishes to make disclosure or how it wishes to use such Designated Material, and the reason(s) and
purpose(s) therefor. The Supplying Party or its counsel shall thereafter respond to the request in
writing (which shall include email) as soon as practicable, but within five (5) business days of its
receipt of such request, and if consent is withheld, it shall state the reasons why consent is being
withheld. If the Requesting Party and the Supplying Party are subsequently unable to agree upon
the terms and conditions of disclosure for the Designated Material in issue, the Requesting Party
shall be free to move the Court for an order permitting the requested disclosure in accordance with
the Applicable Rules. On such a motion, it will be the burden of the Supplying Party to justify its
reasons for withholding consent. Pending the resolution of the motion, the Designated Material in
issue shall continue to be treated in the manner as designated by the Supplying Party until the

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Court orders otherwise. Such requests are without prejudice to the right of the Requesting Party
to challenge a designation pursuant to paragraph 5.2 below.
5.2

Any Party may object to the propriety of the designation (or redesignation) of

specific Discovery Material as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, or
“OUTSIDE COUNSEL ONLY” (“Objecting Party”) by serving a written objection (which shall
include email) upon the Supplying Party’s counsel. The Supplying Party or its counsel shall
thereafter, within five (5) business days, respond in writing (which shall include email) to such
objection by either: (1) agreeing to remove or change the designation; or (2) stating the reasons
for such designation. If the Objecting Party and the Supplying Party are subsequently unable to
agree upon the designation or the terms and conditions of disclosure for the Designated Material
in issue, the Objecting Party shall be free to move the Court for an Order removing or modifying
the disputed designation in accordance with the Applicable Rules. On such a motion, it will be
the burden of the Supplying Party to justify the limitation on circulation of the Designated Material
in issue. Pending the resolution of the motion, the Designated Material in issue shall continue to
be treated in the manner as designated by the Supplying Party until the Court orders otherwise.
6.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL
6.1

If a Receiving Party learns that it has disclosed Designated Material of a Supplying

Party to any person or entity or in any circumstance not authorized under this Protective Order,
that Receiving Party shall, upon learning of such disclosure: (1) immediately notify the Supplying
Party of the disclosure and all pertinent facts known to that Receiving Party relating to such
disclosure; (2) make all reasonable efforts to secure the return or deletion of such Designated
Material by each unauthorized person who received it and prevent further disclosure by each such
unauthorized person; (3) inform each such person or entity to whom unauthorized disclosures were
made of all the terms of this Protective Order; and (4) request that such persons or entities execute
the Acknowledgement.

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6.2

An unauthorized disclosure of any Designated Material by any Receiving Party

does not change the confidentiality designation assigned to it by the Supplying Party and does not
waive such Supplying Party’s right to maintain that confidentiality designation as otherwise
provided under the provisions of this Protective Order.
7.

PRODUCTION OF DESIGNATED MATERIAL REQUIRED BY LEGAL
PROCESS
7.1

If a Receiving Party is served with a discovery request, subpoena, or an order issued

in other litigation, or receives some other form of legal process from any court or federal or
state regulatory or administrative body or agency seeking disclosure of any Designated Material
designated as such by a Supplying Party, to the extent permitted by law, regulation, or the rules
and requirements of any relevant governmental regulatory or administrative authority:
(a)

The Receiving Party shall notify the Supplying Party in writing, and include with
that notice a copy of the discovery request, subpoena, order, or other form of
legal process as soon as reasonably practicable and prior to any disclosure, and,
in any event, wherever reasonably practicable, no later than the earlier of five
(5) business days after the Receiving Party’s counsel becomes aware of the
legal process or ten (10) calendar days before the deadline to respond to the
request, subpoena, order, or legal process seeking disclosure; and

(b)

The Receiving Party shall promptly: (i) deliver a copy of this Protective Order
to the party that caused the discovery request, subpoena, order, or other form of
legal process to issue; and (ii) inform that party that some or all of the
information covered by the discovery request, subpoena, order, or other form
of legal process is subject to this Protective Order.

7.2

The Receiving Party shall not produce the requested Designated Material unless

required by law, regulation, or the rules and requirements of any relevant governmental regulatory
or administrative authority, or if a court of competent jurisdiction so directs, except if the
Supplying Party (a) consents, (b) fails to file a motion to quash, or (c) fails to notify the Receiving

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Party in writing of its intention to contest the production of the Designated Material prior to the
date designated for production of the Designated Material, in which event the Receiving Party may
produce on the production date, absent the Supplying Party’s consent.

In connection with any

production of Designated Material subject to this Protective Order, the Receiving Party shall
request confidential treatment for the Designated Material substantially similar to the applicable
requirements of this Protective Order.

In the event that Designated Material is produced to a

nonparty in the manner contemplated in this Section 7, such Discovery Material shall otherwise
continue to be treated in the manner as designated by the Supplying Party in this Action and subject
to the provisions of this Protective Order.
7.3

The Supplying Party shall bear all responsibility for any objections to the

production of such Designated Material. Nothing in this Protective Order shall be construed as
authorizing or requiring any Party or nonparty to disobey any law, court order, subpoena, or other
form of legal process issued from any federal, state, or other regulatory or administrative authority
requiring the production of Designated Material.
8.

DISCLOSURE OF PRIVILEGED MATERIAL
8.1

Pursuant to the agreement of the Parties under Federal Rule of Evidence 502(e) and

by order of this Court under Federal Rule of Evidence 502(d), disclosure of Discovery Material in
this Action, whether inadvertent or otherwise, shall be subject to and shall not waive or impair, for
purposes of this Action or otherwise, any claim of privilege, protection, exemption, or immunity
from disclosure, including, but not limited to, the attorney-client privilege or work product
doctrine, concerning such Discovery Material or the subject matter thereof, and is without
prejudice to any Party’s right to contest such a claim. Each Party reserves the right to redesignate
as Privileged Material any Discovery Material that it produces. For the avoidance of doubt, any
provisions of Federal Rule of Evidence 502(b) that would provide narrower protections for
Privileged Material in the event of disclosure are inapplicable to the disclosure of Discovery
Material in this Action.

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8.2

If a Supplying Party believes that it produced Discovery Material that constitutes

Privileged Material, that Supplying Party shall provide written notice (which shall include email)
to each Receiving Party of the claim of privilege, protection, exemption, or immunity and the basis
for such claim. Thereafter, within five (5) business days of its receipt of such notice, any Receiving
Party to which the claimed Privileged Material in issue was produced shall return, sequester, or
destroy all copies of the same in accordance with Federal Rule of Civil Procedure 26(b)(5)(B) and
provide a certification of counsel of such treatment, and shall promptly attempt to obtain all copies
of such claimed Privileged Material which were transmitted to other persons, firms, or entities.
For the avoidance of doubt, the provisions of paragraph 13.4 apply equally to a Receiving Party’s
obligations to return, sequester, or destroy any claimed Privileged Material.
8.3

Notwithstanding paragraph 8.2, a Receiving Party may sequester a copy of any

Discovery Material that is claimed as Privileged Material, in a secure medium that is segregated
from any general document depositories that such Receiving Party has established, for purposes
of evaluating the claim of privilege and may promptly present the information to the Court under
seal for a determination of the claim pursuant to the Applicable Rules. The production of
Privileged Material, whether inadvertent or otherwise, shall not itself serve as the basis of any
motion to the Court. The Supplying Party bears the burden of establishing the privilege, protection,
exemption, or immunity with respect to all Discovery Material it seeks to redesignate as Privilege
Material.
8.4

Any Receiving Party that discovers it has received what it believes may be

inadvertently produced Privileged Material shall provide prompt notice to the Supplying Party of
the same.
9.

USE OF DESIGNATED MATERIAL IN COURT FILINGS AND OPEN COURT
9.1

Submissions to the Court or Appellate Court. Except as agreed in writing by

counsel for the Supplying Party or ordered by the Court or any appellate court in this Action,
to the extent that any Designated Material is, in whole or in part, contained in, incorporated

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in, reflected in, described in, or attached to any pleading, motion, memorandum, appendix,
exhibit, or other judicial filing, counsel shall file that submission under seal and/or in redacted
form in accordance with the Applicable Rules.
9.2

Use in Open Court. The Parties shall be free to use any Designated Material at any

pretrial conferences, hearings, trial, and in any appeals related to this Action, but shall work
together to fashion appropriate measures to limit the disclosure of such Designated Material. The
Court shall issue any relief it finds necessary or appropriate, upon motion or agreement of the
Parties, prior to trial. Unless otherwise directed by the Court, as part of any pretrial conference or
any meet and confer regarding the use of exhibits in open court, and at least forty-eight (48) hours
prior to the use of any Designated Material in open court, including at any conference, hearing,
trial, or appellate argument, Outside Counsel for any Receiving Party who desires to offer or use
such Designated Material in open court shall meet and confer in good faith with the Supplying
Party to discuss ways to redact or otherwise minimize the disclosure of the Designated Material,
so that it may be offered or otherwise used by any Party, in accordance with applicable law and
the Applicable Rules. If the Parties, and where applicable, any other Supplying Party, are unable
to resolve a dispute related to such Designated Material, or if it was not reasonably feasible to meet
and confer at least forty-eight (48) hours prior to use, then any Party (or, where applicable, any
other Supplying Party), may request relief from the Court in accordance with the Applicable Rules.
10.

ADVICE TO CLIENTS
10.1

Notwithstanding any other provisions of this Protective Order, nothing in this

Protective Order shall bar or otherwise restrict counsel for any Party from rendering advice to his
or her clients with respect to this Action or, in the course thereof, relying upon Confidential, Highly
Confidential, or Outside Counsel Only Information, provided that in rendering such advice,
counsel shall not disclose any other Supplying Party’s Confidential, Highly Confidential, or
Outside Counsel Only Information other than in a manner provided for in this Protective Order.

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11.

USE AND DISCLOSURE OF OWN AND INDEPENDENTLY OBTAINED
INFORMATION
11.1

Notwithstanding any provision of this Protective Order, the restrictions and

protections conferred by this Protective Order do not, and shall not be construed to: (1) limit or
preclude any Supplying Party from using its own Confidential, Highly Confidential, or Outside
Counsel Only Information in any manner it sees fit, without prior consent of any Party, nonparty,
or the Court; (2) limit a Receiving Party from using, in any manner it sees fit, (a) information
known to and lawfully obtained by the Receiving Party prior to the production or disclosure of that
same information by a Supplying Party in this Action, or (b) information obtained by the Receiving
Party from a different source who obtained the information lawfully and is under no obligation of
confidentiality to the Supplying Party; or (3) apply to any information that is lawfully in the public
domain at the time of production or disclosure or lawfully becomes part of the public domain after
its production or disclosure as a result of publication not involving a violation of this Protective
Order.
12.

NONPARTY DISCOVERY
12.1

The Parties shall serve a copy of this Protective Order simultaneously with any

subpoena or other request for documents or information issued to any nonparty in connection with
this Action. A nonparty from which discovery is sought by one or more Parties to this Action may
designate

Discovery

Material

that

it

produces

as

“CONFIDENTIAL”,

“HIGHLY

CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” consistent with the provisions of this
Protective Order. Under such circumstances, Discovery Material designated “CONFIDENTIAL”,
“HIGHLY CONFIDENTIAL”, or “OUTSIDE COUNSEL ONLY” by a nonparty shall be
assigned the same protection as Designated Material so designated by a Party that is a Supplying
Party, and all duties and protections applicable to a Party that is a Supplying Party under this
Protective Order shall apply to the nonparty Supplying Party.

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13.

MODIFICATION; DURATION; RETURN OF DESIGNATED MATERIAL
13.1

By written agreement of the Parties or upon motion and order of the Court, the

terms of this Protective Order may be amended, modified, or superseded. The provisions of this
Protective Order concerning the confidentiality of and protections afforded to Designated Material
shall continue in full force through trial and any appeals related to this Action and survive any final
judgment or settlement in this Action, unless otherwise amended, modified, or superseded by
written agreement of the Parties or express order of the Court.
13.2

Upon the conclusion of this Action, including any appeals, at the written request of

the Supplying Party, all Designated Material and any and all copies thereof that were produced or
disclosed by that Supplying Party shall, at the Receiving Party’s option and within sixty (60)
calendar days of receipt of the request, either be destroyed or returned to the Supplying Party,
provided, however, that counsel may retain their attorney work product and all court-filed
documents, even though they contain Confidential, Highly Confidential, or Outside Counsel Only
Information, provided that such retained work product and court-filed documents shall remain
Designated Material subject to the terms of this Protective Order.
13.3

At the written request of the Supplying Party, any person or entity having custody

or control of recordings, notes, memoranda, summaries, or other written materials, and all copies
thereof, containing Designated Material shall deliver to the Supplying Party an affidavit certifying
that, except as otherwise provided in this Section 13, reasonable efforts have been made to assure
that all such Designated Material and any copies thereof have been destroyed or delivered in
accordance with the terms of this Protective Order.
13.4

The provisions of this Section 13 regarding destruction or return of Designated

Material do not apply to Designated Material, copies thereof, or other documents containing
Designated Material that the Receiving Party has a separate legal obligation to maintain, and no
Receiving Party shall be required to return or destroy Designated Material from: (1) disaster
recovery or business continuity backups, (2) data stores in system-generated temporary folders or
near-line storage, and/or (3) unstructured departed employee data.

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Backup storage media will

not be restored for purposes of returning or certifying destruction of Designated Material, but
such retained information shall continue to be treated in accordance with this Protective Order.
14.

RESERVATION OF RIGHTS
14.1

The Parties specifically reserve the right to challenge the designation of any

particular Designated Material and agree that by stipulating to entry of this Protective Order, no
Party waives any right it otherwise would have to object to disclosing or producing any information
or item on any ground not addressed in this Protective Order.
14.2

Entry of this Protective Order shall be without prejudice to any motion for relief

from or the modification of the provisions hereof or to any other motion relating to the production,
disclosure, exchange, or use of Discovery Material in the course of this Action, and shall not
prevent any Party or nonparty from seeking a further order of this Court pursuant to Federal Rule
of Civil Procedure 26(c).

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Dated: January 24, 2025
By: /s/ Atara Miller
Scott A. Edelman
Atara Miller
Stephen P. Morgan
Peter Rosania
MILBANK LLP
55 Hudson Yards
New York, NY 10001-2163
Telephone: [phone]
Email: [e-mail]
[e-mail]

By: /s/ Benjamin E. Marks
Andrew S. Tulumello (pro hac vice)
Crystal L. Weeks (pro hac vice)
Sherry Safavi (pro hac vice)
WEIL, GOTSHAL & MANGES LLP
2001 M Street, NW, Suite 600
Washington, DC 20038
Telephone: [phone]
Email: [e-mail]
Benjamin E. Marks
Todd Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: [phone]
Email: [e-mail]

-andStuart Rosen
Hope Lloyd
Marion Burke
7 World Trade Center
250 Greenwich Street
New York, NY 10007

Counsel for Respondent
Sirius XM Radio LLC

Counsel
for
Petitioner
Broadcast Music, Inc.
This confidentiality agreement does not bind the Court or any of its
personnel. The Court can modify this stipulation at any time. The
Court will retain jurisdiction over the terms and conditions of this
agreement only for the pendency of this litigation. Any party
wishing to make redacted or sealed submissions shall comply with Rule
9 of this Court's Individual Rules of Civil Procedure.
SO ORDERED.

Dated:

January 29

_______________________________
HON. KATHERINE POLK FAILLA
United States District Judge

, 2025

New York, New York

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EXHIBIT A

26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BROADCAST MUSIC, INC.,
24 Civ. 6896 (KPF)
Petitioner,
Related to United States v. Broadcast
Music, Inc., 64 Civ. 3787 (LLS)

v.
SIRIUS XM RADIO LLC f/k/a SIRIUS XM
RADIO INC.,
Respondent.

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
BY THE PROTECTIVE ORDER
I _________________________, under penalty of perjury, 28 U.S.C. §1746, declare as
follows:
1. Information, including documents and things, designated as “CONFIDENTIAL”,
“HIGHLY CONFIDENTIAL”, and/or “OUTSIDE COUNSEL ONLY” as defined in the
Stipulation and Protective Order entered in the above-captioned action (the “Protective Order”) is
being provided to me pursuant to the terms and restrictions of the Protective Order.
2. I have been given a copy of and have read the Protective Order.
3. I am familiar with the terms of the Protective Order, and I agree to comply with and to
be bound by its terms.
4. I submit to the jurisdiction of the United States District Court for the Southern District
of New York for enforcement of the Protective Order.
5. I acknowledge that violation of the Protective Order may result in sanctions or
penalties for contempt of court.
6. I agree to not use any materials disclosed to me that are designated as
“CONFIDENTIAL”, “HIGHLY CONFIDENTIAL”, and/or “OUTSIDE COUNSEL ONLY”

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pursuant to the Protective Order except for purposes of the above-captioned litigation and to not
disclose any of this information to persons other than those specifically authorized by the
Protective Order, without the express written consent of the party who designated the information
as confidential or by order of the presiding judge in the above-captioned action.
7. I agree to notify any stenographic, clerical, or technical personnel who are required to
assist me of the terms of this Protective Order and of its binding effect on them and me.

Date
Name (typed or printed)

Signature

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