Securities and Exchange Commission v. Fiore et al

Filing 53

STIPULATION AND ORDER REGARDING THE PROTECTION AND CONFIDENTIALITY OF SENSITIVE PERSONAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material. SO ORDERED., Motions terminated: 52 CONSENT MOTION for Protective Order . filed by Securities and Exchange Commission. (Signed by Judge Kenneth M. Karas on 12/28/19) (yv)

Case 7:18-cv-05474-KMK Document 52-1 Filed 12/23/19 Page 1 of 4

John J. Bowers
Attorneys for Plaintiff
SECURITIES AND EXCHANGE COMISSION
100 F Street, N.E.
Washington, D.C. 20549
[phone]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
- against JOSEPH A. FIORE, BERKSHIRE CAPITAL
MANAGEMENT COMPANY, INC., and
EAT AT JOE'S, LTD. n/k/a SPYR, INC.,
Defendants.

18-cv-5474 (KMK)
ST PULATION AND
OP'Ul'.~ ..:n1] ORDER
RE
RDINGTHE
PROTECTION AND
CONFIDENTIALITY OF
SENSITIVE PERSONAL
INFORMATION

1.
This Stipulation and [Proposed] Order is made between the United States
Securities and Exchange Commission ("Commission") and the defendants in this action
("Defendants") to protect confidential and/or sensitive information received by the Commission
during the course of its investigation of this matter and by the parties during the litigation.
2.
As used in this Stipulation and Order, the term "Sensitive Personal Information"
shall mean any documents or other information containing any one or more of the following
categories of personal and private documents or information: (a) a social security or tax
identification number; (b) individuals' financial account statements, including statements for any
bank account, credit card account, brokerage account, mortgage, student loan, or other loan; (c)
any financial account number, including for a bank account, credit card account, brokerage
account, mortgage, student loan, or other loan; ( d) tax returns; (e) the home address and phone
number of any individual person; (f) the birth date of any individual person; (g) the name of any
individual person who, at the time of the filing of this matter, was known to be less than 18 years
old; or (h) medical information. Sensitive Personal Information does not include the last four
digits of a financial account number or phone number, the city and state of an individual's home
address, the year of an individual's birth, or copies of unredacted filings by regulated entities or
registrants that are available on the Commission's public website.

Case 7:18-cv-05474-KMK Document 52-1 Filed 12/23/19 Page 2 of 4

3.
Sensitive Personal Information disclosed to any Defendant in this action or to
defense counsel during the course of this action:
a.

Shall be used only for the purpose of preparation, trial, and appeal of this
matter and for no other purpose, and shall not be disclosed except in
accordance with the terms hereof;

b.

Shall not be used for any business or commercial purposes;

c.

Shall not be published to the public in any form, except as permitted
below;

d.

May be disclosed only to the following persons, on an as-needed basis in
the course of the litigation, with reasonable precautions taken to ensure
that the confidentiality of the information is protected and maintained:
1.

A Defendant;

11.

Employees or contractors of any law firm that represents a
Defendant, including attorneys and secretarial, clerical, paralegal,
legal, or student personnel, and any person or entity with whom a
Defendant's counsel contracts to reproduce or manage documents;

111.

Non-party witnesses;

1v.

A document's author(s) or recipient(s);

v.

Independent (non-employee) consultants, expert witnesses, or
advisors retained by any of the parties to this action in connection
with this action;

v1.

Court reporters or stenographers - and their employees - who are
engaged to record testimony for a hearing or deposition;

v11.

The Securities and Exchange Commission and its employees,
agents, or contractors; and

viii.

Such other persons as hereafter may be authorized by either
(1) written consent of all the parties or (2) the Court upon motion
of either party.

4.
Sensitive Personal Information disclosed in this action may be used by the
Securities and Exchange Commission for any of the "Routine Uses of Information" identified in
SEC Form 1662 ("Supplemental Information for Persons Requested to Supply Information
Voluntarily Or Directed to Supply Information Pursuant to a Commission Subpoena"), a copy of
which is attached hereto as Exhibit A.
2

Case 7:18-cv-05474-KMK Document 52-1 Filed 12/23/19 Page 3 of 4

5.

The provisions of this Stipulation and Order shall not be construed as preventing:
a.

Any disclosure of Sensitive Personal Information to any party to this
action or the party's counsel for the purposes of this action;

b.

Any disclosure of Sensitive Personal Information to the Court or its
employees for the purposes of this action; or

c.

Any disclosure of Sensitive Personal Information for the purpose of
enforcing the criminal law or as otherwise required by law.

6.
Except as otherwise agreed or ordered, prior to making a public filing of any
document in these proceedings, the Commission and Defendants agree to redact all Sensitive
Personal Information from the document. The Commission and Defendants also agree to take
reasonable and appropriate measures to prevent unauthorized disclosure of Sensitive Personal
Information contained in documents produced or filed in these proceedings, including by persons
to whom the Commission or Defendants show or give access to such documents. In the event
that redacting a filing is impracticable or would result in a filing being almost entirely redacted,
the parties shall file the document under seal. If a document is filed under seal, it may be
disclosed to the parties or persons under paragraph 3 .d. In addition, if a party intends to make a
filing (such as a brief or motion) that incorporates Sensitive Personal Information in the written
text, the party must: 1) file a version clearly labeled "under seal," with the Sensitive Personal
Information subject to this Stipulation and Order noted by brackets, bold typeface, or some other
clear indication; and 2) file a public redacted version that removes the Sensitive Personal
Information.
7.

This Stipulation and Order shall not:
a.

Operate as an admission by any party that any particular document in fact
contains Sensitive Personal Information;

b.

Prejudice in any way the right of a party to seek a determination of
whether such material is or should be subject to the terms of this
Stipulation and Order;

c.

Prevent a Defendant's or non-party's disclosure of its own Sensitive
Personal Information; or

d.

Prejudice in any way the right of any party to apply to the Court for a
further protective order relating to any other confidential information or
Sensitive Personal Information.

8.
Nothing in this Stipulation and Order shall be interpreted to mean that any party
has agreed to produce all documents requested by another party or otherwise waived any
objection to any outstanding document request, nor shall this Stipulation and Order preclude the

3

Case 7:18-cv-05474-KMK Document 52-1 Filed 12/23/19 Page 4 of 4

parties from offering Sensitive Personal Information into evidence at the trial of this action or in
any deposition or other proceeding in this action, subject to the restrictions set forth herein.
9.
Pursuant to Rule 26(a)(l), the SEC provided Initial Disclosures to Defendants that
included as Exhibit 2 a description of the documents, data compilations, and tangible things that
the SEC may use to support its claims, as well as additional documents not privileged or
protected from disclosure, which materials are voluminous and may contain Personally
Identifiable Information ("PII") and therefore require protection by the Court. Without waiving
its objections on relevance and other grounds to individual items within the production, the SEC
has agreed, upon entry of this Stipulation and Order, to produce an electronic copy of these
materials to Defendants in the manner in which they have been maintained in the ordinary course
of business by the SEC during its investigation. Defendants have agreed to treat these materials
as Sensitive Personal Information as described hereinabove, based on the sensitive nature of the
information and the nature of the conduct alleged in this matter.
10.
Unless otherwise agreed or ordered, this Stipulation and Order shall survive the
termination of the litigation.
SO AGREED:

ls/John J Bowers
John J. Bowers
Securities and Exchange Commission
100 F. Street, N.E.
Washington, D.C. 20549

ls/Marc S. Gottlieb
Marc S. Gottlieb
Ortoli Rosenstadt LLP
366 Madison Ave, 3rd Floor
New York, NY 10017
[e-mail]

Counsel for Plaintiff Securities
and Exchange Commission

Counsel for Defendants

Dated: December 16, 2019

Dated: December 16, 2019

SO ORDERED.
DATED:

Whiter lains, New York
jL
,2019.
l

Z1

M.KARAS
UNITED STATES DISTRICT JUDGE

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