Smolen, Jr. v. Wesley et al

Filing 168

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Philip M. Halpern on 5/6/2022) (rro) Modified on 5/9/2022 (rro).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAMUEL SMOLEN

STIPULATED
CONFIDENTIALITY
AGREEMENT AND
PROTECTIVE ORDER

Plaintiff(s),
- against C.O. M. WESLEY, Et. Al,

16 Civ. 2417 (PMH)

Defendant(s).

PHILIP M. HALPERN, United States District Judge:
WHEREAS, all 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 nonpublic and competitively sensitive
information that they may need to disclose in connection with discovery in this action;
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds good cause exists 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 Order – including
without limitation the Parties to this action (including their respective corporate parents,
successors, and assigns), 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 Order — will adhere to the following terms, upon pain of contempt:
1.

With respect to “Discovery Material” (i.e., information of any kind

produced or disclosed in the course of discovery in this action) that a person has designated as

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“Confidential” pursuant to this Order, no person subject to this Order may disclose such
Confidential Discovery Material to anyone else except as this Order expressly permits:
2.

The Party or person producing or disclosing Discovery Material

(“Producing Party”) may designate as Confidential only the portion of such material that it
reasonably and in good faith believes consists of:
(a)

previously non-disclosed 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 non-disclosed material relating to ownership or control of any
non-public company;

(c)

previously non-disclosed business plans, product-development
information, or marketing plans;

(d)

any information of a personal or intimate nature regarding any individual;
or

(e)

any other category of information this Court subsequently affords
confidential status.

3.

With respect to the Confidential portion of any Discovery Material other

than deposition transcripts and exhibits, the Producing Party or its 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.

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4.

A Producing Party or its counsel may designate deposition exhibits or

portions of deposition transcripts as Confidential Discovery Material 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 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 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 in their possession or under their control as directed by the Producing Party or that
person’s counsel. During the 30-day period following a deposition, all Parties will treat the
entire deposition transcript as if it had been designated Confidential.
5.

If at any time before the trial of this action a Producing Party realizes that

it should have designated as Confidential some portion(s) of Discovery Material that it
previously produced without limitation, the Producing Party may so designate such material by
so apprising all prior recipients in writing. Thereafter, this Court and all persons subject to this
Order will treat such designated portion(s) of the Discovery Material as Confidential.
6.

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.
7.

Where a Producing Party has designated Discovery Material as

Confidential, other persons subject to this Order may disclose such information only to the
following persons:

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(a)

the Parties to this action, their insurers, and counsel to their insurers;

(b)

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

(c)

outside vendors or service providers (such as copy-service providers and
document-management consultants) that counsel hire and assign to this
matter;

(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 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 an Exhibit hereto;

(h)

stenographers engaged to transcribe depositions the Parties conduct in this
action; and

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(i)

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

8.

Before disclosing any Confidential Discovery Material to any person

referred to in subparagraphs 7(d), 7(f), or 7(g) above, counsel must provide a copy of this Order
to such person, who must sign a Non-Disclosure Agreement in the form annexed as an Exhibit
hereto stating that he or she has read this Order and agrees to be bound by its terms. Said
counsel must retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to
opposing counsel either before such person is permitted to testify (at deposition or trial) or at the
conclusion of the case, whichever comes first.
9.

In accordance with Rule 5 of this Court’s Individual Practices, any

party filing documents under seal must simultaneously file with the Court a letter brief and
supporting declaration justifying – on a particularized basis – the continued sealing of such
documents. The parties should be aware that the Court will unseal documents if it is unable to
make “specific, on the record findings . . . demonstrating that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.” Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 120 (2d Cir. 2006).
10.

The Court also retains discretion whether to afford confidential treatment

to any Discovery Material designated as Confidential and submitted to the Court in connection
with any motion, application, or proceeding that may result in an order and/or decision by the
Court. 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, even if
such material has previously been sealed or designated as Confidential.

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11.

In filing Confidential Discovery Material with this Court, or filing

portions of any pleadings, motions, or other papers that disclose such Confidential Discovery
Material (“Confidential Court Submission”), the Parties shall publicly file a redacted copy of the
Confidential Court Submission via the Electronic Case Filing System. The Parties shall file an
unredacted copy of the Confidential Court Submission under seal with the Clerk of this Court,
and the Parties shall serve this Court and opposing counsel with unredacted courtesy copies of
the Confidential Court Submission.
12.

Any Party who objects to any designation of confidentiality may at any

time before the trial of this action serve upon counsel for the Producing Party a written notice
stating with particularity the grounds of the objection. If the Parties cannot reach agreement
promptly, counsel for all affected Parties will address their dispute to this Court in accordance
with paragraph 4(D) of this Court’s Individual Practices.
13.

Any Party who requests additional limits on disclosure (such as

“attorneys’ eyes only” in extraordinary circumstances), may at any time before the trial of this
action serve upon counsel for the recipient Parties a written notice stating with particularity the
grounds of the request. If the Parties cannot reach agreement promptly, counsel for all affected
Parties will address their dispute to this Court in accordance with paragraph 4(D) of this
Court’s Individual Practices.
14.

Recipients of Confidential Discovery Material under this Order may use

such material solely for the prosecution and defense of this action and any appeals thereto, and
not for any business, commercial, or competitive 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.

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15.

Nothing in this Order will prevent any Party 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 that such Party gives written notice to the Producing Party 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 Party will bear the burden to
oppose compliance with the subpoena, other compulsory process, or other legal notice if the
Producing Party deems it appropriate to do so.
16.

Each person who has access to Discovery Material designated as

Confidential pursuant to this Order must take all due precautions to prevent the unauthorized or
inadvertent disclosure of such material.
17.

If, in connection with this litigation, a party inadvertently discloses

information subject to a claim of attorney-client privilege or attorney work product protection
("Inadvertently Disclosed Information"), such disclosure shall not constitute or be deemed a
waiver or forfeiture of any claim of privilege or work product protection with respect to the
Inadvertently Disclosed Information and its subject matter.
18.

If a disclosing party makes a claim of inadvertent disclosure, the

receiving party shall, within five business days, return or destroy all copies of the Inadvertently
Disclosed Information, and provide a certification of counsel that all such information has been
returned or destroyed.
19.

Within five business days of the notification that such Inadvertently

Disclosed Information has been returned or destroyed, the disclosing party shall produce a
privilege log with respect to the Inadvertently Disclosed Information.
20.

The receiving party may move the Court for an Order compelling
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production of the Inadvertently Disclosed Information. The motion shall be filed under seal,
and shall not assert as a ground for entering such an Order the fact or circumstances of the
inadvertent production.
21.

The disclosing party retains the burden of establishing the privileged or

protected nature of any Inadvertently Disclosed Information. Nothing in this Order shall limit
the right of any party to request an in camera review of the Inadvertently Disclosed
Information.
22.

Within 60 days of the final disposition of this action – including all

appeals – all recipients of Confidential Discovery Material must either return it – including all
copies thereof – to the Producing Party, or, upon permission of the Producing Party, destroy
such material – including all copies thereof. In either event, by the 60-day deadline, the
recipient must certify its return or destruction by submitting a written certification to the
Producing Party that affirms that it has not retained any copies, abstracts, compilations,
summaries, or other forms of reproducing or capturing any of the Confidential Discovery
Material. Notwithstanding this provision, the attorneys 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 Confidential Discovery Material. Any such archival copies that contain or
constitute Confidential Discovery Material remain subject to this Order.
23.

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

to be binding upon all persons to whom Confidential Discovery Material is produced or
disclosed.
24.

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
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any contempt thereof.
ADDENDUM TO STIPULATED
CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER
WHEREAS discovery herein may include the production of information and/or documents
that (a) contain highly sensitive information, policies, procedures, or other matters that, if
disclosed, could jeopardize correctional or institutional safety, security or good order, or (b)
contain information that is confidential under state or federal law;
IT IS HEREBY STIPULATED AND AGREED that:
25.

Unless provided by the Court or consented to in writing by Defendants, Plaintiff’s

counsel may not provide a copy or allow a copy of any Confidential Material to be given to
Plaintiff. Plaintiff’s counsel may show and discuss Confidential Material with Plaintiff to the
extent necessary to prepare for the litigation of this action.
26.

Defendants may designate the following documents as “Highly Confidential:”

(a)

Reports, photographs and other records prepared by the DOCCS Office of Special

Investigations, or its predecessor entity the DOCCS Office of the Inspector General, in connection
with an investigation conducted by that entity, and
(b)

Materials that Defendants, in good faith, believes would threaten the safety or

security of a correctional facility or the general public if disclosed to persons outside the scope of this
Order.

27.

A designation of “Highly Confidential” means that it is for “Attorneys’ Eyes Only”

and shall not be released or disclosed in any matter to any other person, including Plaintiff, who
does not fall under Paragraph 7(b) – (i). Plaintiff’s counsel may not show or discuss Highly
Confidential Material with Plaintiff.

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28.

After receipt of the Highly Confidential material, should Plaintiff’s counsel believe

that portions thereof should be discussed with Plaintiff in order to assist in the preparation of this
action for trial, Plaintiff’s counsel shall identify those documents to Defendants’ counsel and
request that their designation be changed to “Confidential.”
29.

In the event a dispute arises regarding designations, counsel shall in good faith

attempt to resolve such a dispute. If the dispute cannot be resolved among counsel, the Parties may
address the dispute to the Court in accordance with Paragraph 12 of the Stipulated Confidentiality
Agreement and Protective Order.
SO STIPULATED AND AGREED.
Dated: May 5, 2022

Dated: May 5, 2022

COVINGTON & BURLING LLP

LETITIA JAMES
Attorney General for the
State of New York

By:

/s/ William O’Neil*
William O’Neil, Esq.
The New York Times Building
620 Eighth Avenue
Phone: [phone]
Pro Bono Counsel for Plaintiff

By:

/s/ Gee Won Cha
Gee Won Cha
Julinda Dawkins
Assistant Attorneys General
28 Liberty Street
New York, NY 10005
[phone]/8118
[e-mail]
[e-mail]
Attorney for Defendants

SO ORDERED:

May 6, 2022
Dated: __________________

_________________________
Hon. Philip M. Halpern
United States District Judge

*Electronic signature used with permission pursuant to SDNY ECF Rule 8.5(b)

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