Connecticut Fund for the Environment, Inc. d/b/a Save the Sound v. Westchester County, New York

Filing 265

STIPULATED CONFIDENTIALITY AGREEMENT PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Cathy Seibel on 8/2/2023) (mml)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SAVE THE SOUND and ATLANTIC CLAM FARMS OF
CONNECTICUT, INC.,
Plaintiffs,

Case No. 7:15-cv-06323

v.
WESTCHESTER COUNTY, NEW YORK;
TOWN/VILLAGE OF HARRISON; VILLAGE OF
LARCHMONT; TOWN OF MAMARONECK; CITY OF
NEW ROCHELLE; VILLAGE OF PELHAM MANOR;
CITY OF RYE; VILLAGE OF RYE BROOK; and
VILLAGE OF SCARSDALE,
Defendants.

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STIPULATED CONFIDENTIALITY AGREEMENT AND PROPOSED
PROTECTIVE ORDER
WHEREAS, on April 2, 2023, the Court issued a Civil Case Discovery Plan and
Scheduling Order as to Plaintiffs Save the Sound and Atlantic Clam Farms of Connecticut, Inc.
and Defendants Village of Larchmont, Town of Mamaroneck, City of New Rochelle, and Village
of Pelham Manor (together, the “Parties”);
WHEREAS, the Parties are conducting discovery and have identified confidential
documents that they believe should be produced only in accordance with an appropriate protective
order;
WHEREAS, documents, deposition testimony, and site inspections have been sought by
one or more of the Parties from Westchester County, to be used in litigation against the other
Parties;

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WHEREAS, Westchester County has indicated that documents and/or information
sought by one or more of the Parties, is confidential and should be produced or provided only
subject to an appropriate protective order; and
WHEREAS, the Parties, having agreed to the following terms of confidentiality, submit
that good cause exists for the issuance of an appropriately tailored confidentiality order governing
the pretrial phase of this action, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, to
govern their discovery vis-à-vis each other as well as any documents or information to be produced
by Westchester County (which will also be subject to certain additional procedures as set forth
below, see Exhibit A);

IT IS HEREBY STIPULATED TO AND ORDERED that the following restrictions and
procedures apply to the documents and information exchanged by the Parties (or produced by
Westchester County) in connection with this action:
1.

Counsel for any Party may designate any document or information, in whole or in

part, as confidential under this Order if counsel determines, in good faith, that such designation is
necessary to protect the interests of the client in that the information that is propriety, financially
or commercially sensitive, a trade secret, or otherwise sensitive non-public information, including
critical infrastructure-related documentation and other matters of public safety and security
(hereinafter “Confidential Information”).
a.

Documents or information designated by a Party as Confidential Information under
this Order will be stamped “CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER” on every page that contains Confidential Information. Documents shall

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be designated as Confidential Information under this Order prior to or at the time
of the production or disclosure of the documents.
b.

For Site Inspections of Westchester County properties and facilities pursuant to
Rule 34(a) of the Federal Rules of Civil Procedure, any document generated by a
Party, or any person attending the inspection on behalf of a Party or Parties during
or after the inspection to document the inspection, shall be deemed Confidential
Information at the time of creation. Within fourteen (14) days of the inspection, any
such documents that are non-privileged shall be provided to counsel for
Westchester County for review and potential designation. Westchester County shall
have thirty (30) days from the date of receipt to designate any such document or
portion thereof as Confidential Information. Any non-privileged document not sodesignated shall no longer be considered Confidential Information at the expiration
of the thirty-day period. Any privileged document shall continue to maintain the
Confidential Information designation.

2.

Where a Party has designated discovery or information as Confidential Information

under this Order, the other Parties and all other persons subject to this Order may disclose such
information only to the following persons:
a)

employees of Parties to this action, but only to the extent counsel determines that
the specific employee’s assistance is reasonably necessary to the conduct of this
litigation, provided such persons have first executed a Non-Disclosure Agreement
in the form annexed as Exhibit B hereto;

b)

counsel retained specifically for this action by the Parties, including any paralegal,
clerical, or other assistant that such counsel employs and assigns to this matter;

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c)

employees of outside vendors or service providers (such as copy-service providers
and document-management consultants) that counsel for a Party hire and assign to
this matter, provided such persons have first executed a Non-Disclosure Agreement
in the form annexed as Exhibit B hereto;

d)

as to any document, its author, its addressee, and any other person indicated on the
face of the document as having received a copy;

e)

stenographers engaged to transcribe depositions in this action, provided such
persons have first executed a Non-Disclosure Agreement in the form annexed as
Exhibit B hereto;

f)

this Court, including any appellate court, its support personnel, and court reporters;

g)

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 Exhibit B hereto;

h)

any witnesses 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 Exhibit B hereto;

i)

any person a Party retains 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 Exhibit B
hereto;

j)

other persons only by written consent of the designating party or upon order of the
Court and on such conditions as may be agreed or ordered, provided such person

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has first executed a Non-Disclosure Agreement in the form annexed as Exhibit B
hereto.
3.

Prior to disclosing or displaying documents or information designated as

Confidential Information under this Order to any persons listed in Paragraph 2 above, excluding
persons listed in subparagraphs (b), (d), or (f), counsel must:
a)

Inform the person of the confidential nature of the documents or information;

b)

Inform the person that this Court has enjoined the use of the information or
documents by them for any purpose other than this litigation and has enjoined the
disclosure of the documents or information to any other person; and

c)

Require each such person to sign a Non-Disclosure Agreement in the form annexed
as Exhibit B hereto.

4.

Recipients of documents designated by a Party as Confidential Information under

this Order may use such material solely in connection with this litigation and any appeals thereto,
and not for any other purpose or in any other litigation proceeding. Nothing contained in this
Order, however, will affect or restrict the rights of any Party with respect to its own documents or
information produced in this action.

Deposition testimony shall be deemed Confidential

Information under this Order as follows:
a. Where a deposition exhibit includes materials designated as Confidential
Information by Westchester County, all testimony referencing, discussing,
describing, or analyzing such Confidential Information shall be deemed
Confidential Information. Within thirty (30) days after delivery of the transcript
by the court reporter, the deposing party must serve a Notice of Designation to

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all Parties as to specific portions of the transcript to be designated Confidential
Information under this sub-paragraph.
b. Where a deposition exhibit includes materials designated as Confidential
Information by a Party, and the Party designates the testimony as Confidential
Information on the record during the deposition, such deposition testimony
shall remain Confidential Information under this Order until thirty (30) days
after delivery of the transcript by the court reporter. Within thirty (30) days
after delivery of the transcript, the designating party may serve a Notice of
Designation to all Parties as to specific portions of the transcript to be
designated Confidential Information under this sub-paragraph. Thereafter,
those portions so designated shall be protected as Confidential Information
under this Order pending objection under the terms of this Order. The failure
to serve a Notice of Designation within the thirty (30) day period shall waive
the designation of Confidential Information made on the record of the
deposition.
Such designations shall be specific as to the portions to be designated Confidential Information
under this Order.
5.

Any document designated by a Party as Confidential Information under this Order

is subject to challenge by any other Party. The following procedure shall apply to any such
challenge:
a)

Objection to Confidentiality. Within thirty (30) days of the receipt of any document
designated as Confidential Information under this Order or a Notice of Designation
of deposition testimony pursuant to Paragraph 4 above, a Party may serve upon the

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designating party an objection to the designation in whole or part. The objection
shall specify the documents or deposition testimony to which the objection is
directed and set forth the reasons for the objection as to each document or category
of documents. Documents or deposition testimony designated as Confidential
Information under this Order to which an objection has been made shall remain
Confidential Information under this Order until de-designated - by waiver,
agreement, or order of the Court. For purposes of information designated
Confidential Information pursuant to Paragraph 1(b), the thirty-day period shall
begin upon expiration of Westchester County’s thirty-day period to designate
information.
b)

Obligation to Meet and Confer. The objecting party and the designating party shall
have fifteen (15) days from service of the objection to meet and confer in a good
faith effort to resolve the objection by agreement.

If agreement is reached

confirming or waiving the objection to designating the subject documents or
documents as Confidential Information under this Order, the designating party shall
serve on all Parties a notice specifying the documents and nature of the agreement.
c)

Obligation to File Motion. If the parties cannot reach agreement as to any
documents designated Confidential Information under this Order, the objecting
party shall file with the Court within thirty (30) days of the service of the objection
a motion to compel de-designation as Confidential Information under this Order.
The moving party has the burden to show good cause for de-designation as
Confidential Information under this Order. The failure to file the motion waives

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the objection to designation of documents as Confidential Information under this
Order.
d)

With respect to any information designated as Confidential Information by
Westchester County, or any deposition testimony so designated under Paragraph
4(a), the objecting party must serve an objection on counsel for Westchester
County. The de-designation of such information may only be done upon consent of
Westchester County or order of the Court.

6.

If a Party wishes to file any document designated as Confidential Information under

this Order, it shall file such documents under seal. In accordance with Rule 11(B) of the Court’s
Individual Rules of Practice, motions for approval of sealed or redacted filings and the subject
document(s), including the proposed sealed document(s), must be filed electronically through the
court’s Electronic Case Filing (hereinafter “ECF”) system in conformity with ECF Rules &
Instructions, section 6. The motion must be filed in public view, must explain the specific reasons
for seeking to file the information under seal, and should not include the information sought to be
filed under seal. Supporting papers must be separately filed electronically and may be filed under
seal or redacted only to the extent necessary to safeguard information sought to be filed under seal.
The proposed sealed document must be contemporaneously filed under seal in the ECF system
and electronically related to the motion. The summary docket text, but not the sealed document,
will be open to public inspection and should not include the information sought to be filed under
seal. Where the motion seeks approval to redact information from a document that is to be publicly
filed, the filing Party shall: (a) publicly file the document with the proposed redactions; and (b)
electronically file under seal a copy of the unredacted document with the proposed redactions
highlighted. Both documents must be electronically filed through the ECF system and related to

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the motion. Any Party unable to comply with the requirements for electronic filing under seal
through the ECF system, or who has reason to believe that a particular document should not be
electronically filed, must move for leave of the Court to file on paper.
7.

A Party who intends to present or anticipates that another Party may present at any

hearing or at trial documents or information designated Confidential Information under this Order
shall raise the issue (without revealing the Confidential Information) in a pre-trial hearing or pretrial memorandum. The Court may thereafter make such orders as are necessary to govern the use
of such documents or information at a hearing or trial. To the extent that the issue raised under this
paragraph relates to information designated Confidential Information by Westchester County, the
Party raising the issue shall give notice to counsel for Westchester County, who shall have an
opportunity to respond to an application made by the Party.
8.

Nothing contained in this Order will be construed as (a) a waiver by a Party or

person of its right to object to any discovery request; (b) a waiver of any privilege or protection;
or (c) a ruling regarding the admissibility at trial of any document, testimony, or other evidence.
9.

Nothing in this Order will prevent any Party from producing any documents

designated Confidential Information under this Order 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 that such Party gives written notice to the designating party as soon as
reasonably possible, and if permitted by the time allowed under the request, at least fifteen (15)
days before any disclosure. Upon receiving such notice, the designating party will bear the burden
to oppose compliance with the subpoena, other compulsory process, or other legal notice if the
designating party deems it appropriate to do so.

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10.

Each person who has access to documents or information designated Confidential

Information under this Order must take all due precautions to prevent the unauthorized or
inadvertent disclosure of such material.
11.

This Order will survive the termination of the litigation and will continue to be

binding upon all persons subject to this Order to whom documents or information designated
Confidential Information under this Order is produced or disclosed. In the event of an appeal,
where a Party wishes to file any document designated as Confidential Information under this Order
before the appellate court, the Party shall file seek permission to file such documents under seal.
12.

This Order binds the Parties and certain others to treat as Confidential Information

any documents or information so classified. This Court has not, however, made any finding
regarding the confidentiality of any documents or information designated by a party as
Confidential Information under this Order.
13.

Within sixty (60) days of the final disposition of this action, including all appeals,

all recipients of documents designated Confidential Information under this Order must either
return such documents including all copies thereof to the designating party or, upon permission of
the designating party, destroy such materials and all copies thereof. In either event, by the 60-day
deadline, the receiving Party must certify its return or destruction by submitting a written
certification to the designating party that affirms that it has not retained any copies, abstracts,
compilations or other forms of reproducing or capturing any of the documents designated as
Confidential under this Order. Notwithstanding this provision, counsel that the Parties have
specifically retained for this action may retain an archival copy of all pleadings, motion papers,
transcripts, expert reports, legal memoranda, correspondence, or attorney work product, even if
such materials contain documents or information designated as Confidential Information under

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this Order.

Any such archival copies that contain or constitute documents or information

designated as Confidential Information under this Order remain subject to this Order.
14.

This Court will retain jurisdiction over all persons subject to this Order to the extent

necessary to enforce any obligations arising hereunder or to impose sanctions for any contempt
thereof.

SO STIPULATED AND AGREED
_____________________________
Julia Muench
Super Law Group, LLC
222 Broadway, 22nd Floor
New York, NY 10038
Attorneys for Plaintiffs Save the Sound &
Atlantic Clam Farms of Connecticut
August 2, 2023
Dated: ___________________

______________________________
Robert A. Spolzino
Abrams Fensterman, LLP
81 Main Street, Suite 400
White Plains, NY 10601
Attorneys for Defendants Village of
Larchmont, Town of Mamaroneck, City
of New Rochelle, & Village of Pelham
Manor
Dated: August 2, 2023

SO ORDERED
8/2/23
Dated: ___________________

By: ______________________________
HON. CATHY SIEIBEL, U.S.D.J.

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STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER:
EXHIBIT B
I, _____________________________________, acknowledge that I have read and
understand the Protective Order in this action governing non-disclosure of those portions of
documents or information that have been designated as Confidential Information and agree to be
bound by its terms. I understand that the Protective Order obligates me to use documents or
information designated as Confidential Information solely for the purposes of the abovecaptioned case, and not to disclose any such documents or information derived directly therefrom
to any other person, firm or entity. I am submitting myself to the jurisdiction of the United
States District Court for the Southern District of New York for matters relating to the Protective
Order, and I understand that my willful violation of any term of the Protective Order could
subject me to punishment for contempt of Court.

DATED: ________________________

BY: ________________________________
NAME: _____________________________
TITLE: _____________________________

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