Securities and Exchange Commission v. Weiss et al
Filing
31
PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO STIPULATED AND AGREED. SO ORDERED. (Signed by Judge Lewis J. Liman on 1/29/2025) (jca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
:
SECURITIES AND EXCHANGE COMMISSION, :
:
Plaintiff,
:
:
-v:
:
JOSHUA A. WEISS ET AL,
:
:
Defendants. :
:
X
LEWIS J. LIMAN, United States District Judge:
24-cv-06988 (LJL)
[rel. 24-cv-06990]
PROTECTIVE ORDER
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 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”
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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)
or marketing plans;
Court.
previously nondisclosed business plans, product development information,
(d)
any information of a personal or intimate nature regarding any individual; or
(e)
any other category of information hereinafter given confidential status by the
3.
With respect to Confidential documents produced to the Securities and Exchange
Commission (“SEC”) in the course of its investigation into the conduct at issue in this lawsuit for
which confidential treatment was requested by the producing party at the time of production, the
Parties may designate such materials as “Confidential” in a letter or other written communication
to the receiving party(ies) specifying the information to be designated as “Confidential.”
4.
With respect to the Confidential portion of any Discovery Material other than
deposition transcripts and exhibits and the materials referenced in paragraph 3, 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.
5.
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 3 the reporter. During the
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30-day period following the conclusion of a deposition, the entire deposition transcript will be
treated as if it had been designated Confidential.
6.
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.
7.
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
document-management 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 Non-Disclosure
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.
8.
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
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an Exhibit 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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
Nothing in this Order shall prevent the SEC from using information obtained prior
to or during this litigation in a manner consistent with its rights and obligations under law
concerning disclosure of documents, including but not limited to the uses specified in the SEC’s
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Forms 1661 and 1662; nor shall anything in this Order interfere with the SEC’s use of information
for law enforcement activities, including but not limited to sharing information with other law
enforcement agencies, and, for uses outside of this litigation, to otherwise regulate, administer, and
enforce the federal securities laws.
15.
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.
16.
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.
17.
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.
18.
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.
19.
In addition to the protections of Federal Rule of Evidence 502, the inadvertent
production or disclosure of any document or information otherwise protected by the attorney-client
privilege, work-product doctrine, or other privilege or immunity shall not operate as a waiver of
any such privilege or immunity. Within a reasonable time after recognizing that privileged or
otherwise protected information has been inadvertently produced or disclosed, the disclosing party
shall notify the receiving party(ies) thereof in writing and request the return or destruction of the
inadvertently produced or disclosed document or information. The receiving party must thereafter
comply with Federal Rule of Civil Procedure 26(b)(5) as to the information subject to the claimed
protection and shall also destroy any copies, abstracts, excerpts, summaries, analyses, notes, or
other writings reflecting the contents of the inadvertently disclosed or produced protected
document(s) or information.
20.
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
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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.
21.
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. Notwithstanding this provision, nothing in this Order shall be
construed as modifying or interfering with the SEC’s document retention and preservation
obligations under federal law.
22.
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.
Counsel for the Parties:
s/ Jodanna L. Haskins____________________
Jodanna L. Haskins
Ian J. Kellogg
SECURITIES AND EXCHANGE COMMISSION
1961 Stout Street, 17th Floor
Denver, Colorado 80294
(303) 844-1000
haskinsjo@sec.gov
kelloggi@sec.gov
Attorneys for Plaintiff SEC
s/ Paul M. Krieger_________________________
Paul M. Krieger
Oleg M. Shik
KRIEGER LEWIN LLP
350 Fifth Avenue, 77th Floor
New York, New York 10118
(212) 390-9552
paul.krieger@kreigerlewin.com
oleg.shik@kriegerlewin.com
Attorneys for Defendant Weiss
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s/ Joshua A. Mayes__________________________
Rachel F. Gage
Joshua A. Mayes
Jane Ashley Ravry
ROBBINS ALLOY BELINFANTE LITTLEFIELD LLC
500 14th Street, NW
Atlanta, Georgia 30318
(404) 856-3264
rachel.gage@robbinsfirm.com
joshua.mayes@robbinsfirm.com
janeashley.ravry@robbinsfirm.com
Attorneys for Defendant Coen
SO ORDERED.
January 29, 2025
Dated: ______________________________
New York, New York
_________________________________________
LEWIS J. LIMAN
United States District Judge
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