Stanley v. Direct Energy Services, LLC

Filing 47

STIPULATED PROTECTIVE ORDER:...regarding procedures to be followed that shall govern the handling of confidential material. And as set forth herein. SO ORDERED. (Signed by Judge Kenneth M. Karas on 11/25/2020) (ama)

Case 7:19-cv-03759-KMK Document 46 Filed 11/25/20 Page 1 of 16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

LINDA STANLEY,
Civil Case No. 7:19-cv-03759-KMK
Plaintiff,
V.

DIRECT ENERGY SERVICES, LLC,
Defendant.
WHEREAS, certain information and documents may be sought, produced, or exhibited by
the parties to this Action (the "Action") or by third parties in connection with this Action, which
the party making the production believes in good faith to constitute trade secrets, proprietary business information, competitively sensitive information, or non-public personal or financial information;
WHEREAS, a protective order would facilitate the production, exchange, and discovery of
documents, testimony, and information in connection with this Action while preserving the parties'
respective positions as to whether particular documents, testimony, or information merit confidential treatment; and
WHEREAS, this matter has come before the Court, by stipulation of the parties, for the
entry of a protective order pursuant to Fed. R. Civ. P. 26(c), limiting the review, copying, dissemination, and filing of confidential and/or proprietary documents and information to be produced by
any party and their respective counsel or by any third party in the court of discovery in this matter
to the extent set forth below; and the parties, by their respective counsel, having stipulated and
agreed to the terms set forth herein, and good cause having been shown;
IT IS ORDERED that:

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1.

This stipulated protective order ("Order") shall govern the handling of documents

and all other information produced by or between the parties to the Action, or by certain third
parties in connection with this Action, including all documents and information produced pursuant
to interrogatories, depositions, requests for production of documents, subpoenas, requests for admission, or other requests for disclosures (whether formal or informal), and all information provided, submitted, or exhibited by the parties hereto or third parties in connection with any evidentiary hearings or other proceedings conducted during the course of the Action.
2.

As used in this Order:
a.

"Confidential Information" and "Confidential Information - For Outside
Counsel Only" means all documents, testimony, and information designated
as "Confidential Information" or "Confidential Information - For Outside
Counsel Only" by any party pursuant to the terms of this Order, including
the contents and all copies, excerpts, extracts, and summaries of such documents, testimony, and information, provided that such designation has not
been successfully challenged and finally revoked pursuant to paragraph 11
below. "Confidential Information" shall include any information of a personal, private, or intimate nature regarding any individual, including personal or financial information, such as names, addresses, social security
numbers, dates of birth, bank account information, and other personal identifying information required to be redacted in public filings pursuant to Fed.
R. Civ. P. 5.2, and any information the disclosure of which would potentially violate state and federal privacy laws, rules, or regulations. Likewise,
materials containing proprietary business information or other non-public

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business information may be designated "Confidential Information." Materials may be designated as "Confidential Information -For Outside Coun-

sel Only" if it is extremely sensitive, highly confidential, non-public information, consisting either of trade secrets or other confidential commercial/proprietary business information, the disclosure of which to the Receiving Party may create a substantial risk of competitive or other business injury to the Producing Party.
b.

"Producing Party" means any party or third party producing "Confidential
Information" or "Confidential Information - For Outside Counsel Only" in
connection with depositions, interrogatories, document production, or otherwise in this Action, or the party asserting the confidentiality privilege, as
the case may be.

c.

"Receiving Party" means the party to the Action and/or any third party receiving "Confidential Information" or "Confidential Information - For Outside Counsel Only" in connection with depositions, interrogatories, documents production, or otherwise.

d.

"Qualified Person" means any person authorized to receive or review "Confidential Information" or "Confidential Information- For Outside Counsel
Only" pursuant to paragraph 5 below.

3.

Any party, subpoenaed third party, or other third party whose information may be

disclosed in connection with the Action may designate documents produced, testimony given, or
other information exchanged in connection with the Action (such as interrogatory answers) as
"Confidential Information" or "Confidential Information - For Outside Counsel Only" either by

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notation on the document, statement on the record of the deposition, designation pursuant to paragraph 9 or 10 herein, or written advice to counsel for the parties to the Action. Electronic documents and information, if any, shall be designated by any of the foregoing methods or pursuant to
a procedure to be agreed upon by the parties. A party may designate as "Confidential Information"
or "Confidential Information - For Outside Counsel Only" subject to this Order any document,
information, or deposition testimony produced or given by any third party to this case, or any
portion thereof, where such information has not already been designated by the third party.
4.

All "Confidential Information" or "Confidential Information-For Outside Counsel

Only" shall be used solely for the purposes of the Action, and no person receiving such information
shall, directly or indirectly, use, transfer, disclose, or communicate in any way the information to
any person other than Qualified Persons. Any other use or disclosure, including use or disclosure
for any other litigation, is strictly prohibited.
5.

Except with the prior written consent of the Producing Party or by order of the

Court, "Confidential Information" shall not be furnished, shown or disclosed to any person or
entity except to:
a. the parties to the Action, including employees of the parties who are assisting
in the Action;
b. counsel for the parties to the Action and their associated attorneys, paralegals
and other professional personnel (including support staff) who are directly assisting such counsel in the preparation of the Action for trial or other proceeding
herein, and are under the supervision or control of such counsel;
c. copying, imaging, computer services, and/or litigation support services who are
bound to protect "Confidential Information" either by their services contract

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with counsel or the Receiving Party or by execution of the confidentiality agreement attached hereto as Exhibit A;
d. any agreed-upon or court-ordered mediator and that mediator's personnel;
e. persons shown on the face of the document to have authored or received it
prior to the commencement of this litigation;
f.

expert witnesses or consultants retained by the parties or their counsel to furnish
technical or expert opinions, services, or assistance in connection with this Action or to give testimony with respect to the subject matter ofthis Action at the
trial of this Action or other proceeding herein;

g. the Court and the Court's personnel;
h. an officer before whom a deposition is taken, including stenographic reporters
and videographers and any necessary secretarial, clerical, or other personnel of
such officer;
1.

J.
6.

trial and deposition witnesses; and
any other person agreed to by the parties.

Material designated by a party as "Confidential Information-For Outside Counsel

Only" may be disclosed only to persons described in clauses (b), (c), (d), (e), (f), (g), (h), (i), and
G) of paragraph 5.
7.

Before any disclosure of "Confidential Information" or "Confidential Information

-For Outside Counsel Only" is made to any person pursuant to paragraph 5(f) or 5G) herein, such
person must execute a confidentiality agreement in the form of Exhibit A attached hereto. Counsel
shall maintain the executed confidentiality agreements required by this Order. Counsel for the
party obtaining the executed Exhibit A from such persons shall supply a copy to counsel for the

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other party at the time of the disclosure of such persons. With respect to experts and consultants,
counsel for the party shall not be required to supply a copy to counsel for the other party unless
and until that expert is disclosed pursuant to Rule 26 of the Federal Rules of Civil Procedure.
8.

Any deposition or trial witness who will be given access to "Confidential Infor-

mation" or "Confidential Information - For Outside Counsel Only" under paragraph 5(i) shall,
prior thereto, be provided with a copy of this Order and counsel shall make reasonable efforts to
have such person execute a confidentiality agreement in the form of Exhibit A attached hereto. If
unable to obtain an executed confidentiality agreement from such person, counsel shall immediately and prior to the deposition or trial testimony provide notice to counsel for the other party.
Counsel for the party obtaining the executed Exhibit A shall supply a copy to counsel for the other
party. Alternatively, counsel for the parties may agree that "Confidential Information" or "Confidential Information - For Outside Counsel Only" is adequately protected by such person's existing
obligations to maintain the confidentiality of such information. Nothing herein, however, shall
prevent any counsel of record from utilizing "Confidential Information" or "Confidential Information - For Outside Counsel Only" in the examination or cross-examination of any person, irrespective of which party produced such information.
9.

Any document or information that may contain "Confidential Information" or

"Confidential Information - For Outside Counsel Only" that has been inadvertently produced
without identification as to its confidential nature may be so designated by the party asserting the
confidentiality privilege by written notice to the Receiving Party identifying the document or information as "Confidential Information" or "Confidential Information - For Outside Counsel
Only." Any party receiving such improperly-designated documents or information shall retrieve
such documents or information from persons not entitled to receive those documents.

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10.

All depositions, the information disclosed therein, and the transcripts thereof shall

presumptively be treated as "Confidential Information" and subject to this Order during the deposition and for a period of thirty (30) days after a transcript of said deposition is received by counsel
for each of the parties. At or before the end of such thirty (30) day period, the deposition shall be
classified appropriately by notifying all of the parties in writing of the specific pages and lines of
the transcript which should be treated as "Confidential Information" or "Confidential Information
- For Outside Counsel Only" thereafter. Counsel for any Producing Party shall have the right to
exclude from depositions any person who is not authorized by this Order to receive documents
designated as "Confidential Information" or "Confidential Information - For Outside Counsel
Only," but only during periods of examination or testimony directed to or comprising information
that contains "Confidential Information" or "Confidential Information - For Outside Counsel
Only."
11.

With respect to objections to designations of documents and information as "Con-

fidential Information" or "Confidential Information-For Outside Counsel Only," a party shall not
be obligated to challenge the propriety of a designation at the time made, and a failure to do so
shall not preclude a subsequent challenge thereto. In the event that any party to the Action disagrees at any stage of these proceedings with the designation by the Producing Party of any information as "Confidential Information," "Confidential Information- For Outside Counsel Only," or
the designation of any person as a Qualified Person, the parties shall first try to resolve such dispute
in good faith on an informal basis. If the dispute cannot be resolved, the party that disagrees with
the designation may seek appropriate relief from the Court on an expedited schedule to be established by the Court that provides the opposing party with the opportunity to file a response. Pending the resolution of such motion by the Court, the parties agree to treat the information that is the

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subject of the motion in accordance with the Producing Party's designation. The Producing Party
shall at all times carry the initial burden of establishing that the contested information merits a
"Confidential Information" or "Confidential Information - For Outside Counsel Only" designation.
12.

A Receiving Party who seeks to file with the Court any deposition transcripts, ex-

hibits, answers to interrogatories, and other documents which have previously been designated as
comprising or containing "Confidential Information" or "Confidential Information - For Outside
Counsel Only" by another party, or any pleading, brief, or memorandum which reproduces, paraphrases, or discloses "Confidential Information" or "Confidential Information- For Outside Counsel Only," shall file such documents conditionally under seal so as to prevent the disclosure of
"Confidential Information" or "Confidential Information - For Outside Counsel Only" to individuals other than Qualified Persons. To the extent practicable, redacted versions of sealed documents
shall be placed on the Court's public docket. The party or third party who designated the documents "Confidential Information" or "Confidential Information - For Outside Counsel Only"
shall, within ten (10) court days, have the obligation to file a motion to permanently seal the documents pursuant to applicable rules. If no such motion is made by the designating party, the documents previously filed conditionally under seal shall be refiled by the Receiving Party in an unredacted format on the Court's public docket. Counsel receiving service copies of filings that contain material designated "Confidential Information" or "Confidential Information - For Outside
Counsel Only" shall disclose such filings only to persons entitled to receive such material under
this Order. A Producing Party seeking to file documents it designated "Confidential Information"
or "Confidential Information - For Outside Counsel Only" shall file a motion to seal in accordance
with local rules and procedures.

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13.

Should the need arise for any of the parties to disclose "Confidential Information"

or "Confidential Information - For Outside Counsel Only" during any hearing or trial before the
Court, including through argument or the presentation of evidence, such party may do so only after
taking such steps as the Court, upon motion of the disclosing party, shall deem necessary to preserve the confidentiality of such "Confidential Information" or "Confidential Information - For
Outside Counsel Only."
14.

Neither this Order nor the production or disclosure of "Confidential Information"

or "Confidential Information - For Outside Counsel Only" shall in any way constitute a waiver of
each party's right to object to the production or disclosure of other information in this Action or in
any other action.
15.

In the event that the Receiving Party is requested or required (by oral questions,

interrogatories, requests for information or documents in a legal proceeding, subpoena, civil investigative demand, other similar process or rule of law) to disclose any "Confidential Information" or "Confidential Information - For Outside Counsel Only" in another action or proceeding, the Receiving Party shall provide the Producing Party with prompt written notice of any such
request or requirement so that the Producing Party may seek a protective order or other appropriate
remedy and/or waive compliance with the provisions of this Order, provided, however, that nothing in this Order shall be interpreted to obligate the Receiving Party to seek such a protective order
or other remedy. Unless the Producing Party waives the protections of this Order, the Receiving
Party shall not disclose any "Confidential Information" or "Confidential Information- For Outside
Counsel Only" except pursuant to the order of a court of competent jurisdiction directing the disclosure of such "Confidential Information" or "Confidential Information - For Outside Counsel
Only."

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16.

Consistent with Federal Rule of Civil Procedure 26(b)(5)(B) and Federal Rule of

Evidence 502, in the event a Producing Party inadvertently discloses information subject to the
attorney-client privilege, attorney work product doctrine, or other applicable privilege or immunity, the disclosure of the inadvertently disclosed information shall not constitute or be deemed a
waiver or forfeiture of any claim of privilege or work product protection that the Producing Party
would otherwise be entitled to assert with respect to the inadvertently disclosed information and
its subject matter. Where it appears on its face that the information was inadvertently disclosed, or
the Producing Party informs the Receiving Party in writing that privileged information has been
inadvertently disclosed, the Receiving Party (i) must promptly return or destroy the specified information and any copies thereof, (ii) must not use or disclose the information until the claim is
resolved, (iii) must take reasonable steps to retrieve any such information that was disclosed or
distributed before the Receiving Party was notified and prevent any further dissemination of the
information, and (iv) may promptly present the information to the Court under seal for a determination of the claim. In presenting the information to the Court under seal for a determination of
the claim, the Receiving Party shall not use the inadvertent production as evidence of a waiver of
the privilege, protection, or immunity. The Producing Party must preserve the information until
the claim is resolved.
17.

In the event anyone shall violate or threaten to violate any terms ofthis Order, the

aggrieved party may immediately apply to the Court to obtain relief, including, without limitation,
injunctive relief against such person. The existence, if any, of an adequate remedy at law shall not
preclude the applying party from obtaining such relief.
18.

This Order shall continue to be binding after the conclusion of this litigation except

(a) that there shall be no restriction on documents that are used as exhibits in Court (unless such

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exhibits were filed under seal); and (b) that a party may seek the written permission of the Producing Party or further order of the Court with respect to dissolution or modification of any provision
of the Order. The provisions of this Order shall, absent prior written consent of both parties, continue to be binding after the conclusion of this Action. The Court expressly retains jurisdiction
over the Action for enforcement of the provisions of this Order following the final resolution of
the Action.
19.

Within sixty (60) days after entry of an order, judgment or decree finally disposing

of the Action, including any appeals therefrom, all "Confidential Information" and "Confidential
Information- For Outside Counsel Only" produced or designated, including any materials or other
documents derived therefrom, and all reproductions thereof, shall be returned to the Producing
Party or shall be destroyed. In the event that any party chooses to destroy physical objects and
documents, such party shall certify in writing within sixty (60) days of the final termination of the
Action that it has undertaken commercially reasonable efforts to destroy such physical objects and
documents, and that such physical objects and documents have been destroyed to the best of its
knowledge. This Order shall not be interpreted in a manner that would violate any applicable canons of ethics or codes of professional responsibility.
20.

Nothing herein shall be deemed to waive any privilege recognized by law, or shall

be deemed an admission as to the admissibility in evidence of any facts or documents revealed in
the course of disclosure.
21.

This Order is entered into without prejudice to the right of either party to seek relief

from, or modification of, this Order or any provisions thereof by properly noticed motion to the
Court.

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22.

When serving any subpoena in the Action, a copy of this Order shall be included

with the subpoena.
23.

This Order shall be binding upon any future party to the Action.

24.

This Order may be executed in counterparts, each of which shall be deemed an

original, but all of which taken together shall constitute one and the same document.
25.

Nothing contained in this Order shall in any way restrict any party's use of its own

"Confidential Information" or "Confidential Information - For Outside Counsel Only." Nor shall
anything in this Order preclude any party from using any materials produced or provided to it
during the litigation derived from, containing, or otherwise referencing a party's own "Confidential Information" or "Confidential Information - For Outside Counsel Only."

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Dated: November 25, 20200.

sl D. Greg Blankinship
D. Greg Blankinship
Todd S. Garber
Chantal Khalil

s/ Michael D. Matthews, Jr.
Michael D. Matthews, Jr.
Andrew R. Kasner
Diane S. Wizig

FINKELSTEIN, BLANKINSHIP,
FREI-PEARSON & GARBER, LLP

MCDOWELLIIETHERINGTONLLP

1001 Fannin Street, Suite 2700
Houston, Texas 77002
Tel: [phone]
[e-mail]
[e-mail]
diane. [e-mail]

1 North Broadway, Suite 900
White Plains, New York 10601
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Steven M. Lucks
FISHKIN LUCKS LLP

277 Broadway, Suite 408
New York, New York 10007
Telephone: [phone]
[e-mail]

Matt Schultz
Bill Cash
LEVIN, PAP ANTONIO, THOMAS,
MITCHELL, RAFFERTY & PROCTOR, P.A.

316 South Bay len St.
Pensacola, Florida 32502
Tel: [phone]
[e-mail]
[e-mail]

Counsel for Defendant

Attorneys for Plaintiff

SO ORDERED.
Dated:

November

~2020

United States District Judge

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EXHIBIT A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LINDA STANLEY,
Civil Case No. 7:19-cv-03759-KMK
Plaintiff,
V.

AGREEMENT TO PROTECT
CONFIDENTIAL INFORMATION

DIRECT ENERGY SERVICES, LLC,
Defendant.

I, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __, state that:
1. My address is _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
2. My present employer is _ _ _ _ _ _ _ _ _ _ _ __
3. My present occupation or job description is _ _ _ _ __
4. I have received a copy of the Stipulated Protective Order (the "Order") entered in the
above-entitled action.
5. I have carefully read and understand the provisions of the Order.
6. I will comply with and agree to be bound by all of the provisions of the Order.
7. I will hold in confidence, will not disclose to anyone not qualified under the Order, and
will use only for purposes of the above-entitled action, any "Confidential Information" or "Confidential Information- For Outside Counsel Only" that is disclosed to me.
8. I will return all "Confidential Information" or "Confidential Information - For Outside
Counsel Only" that comes into my possession, and documents or things that I have prepared relating thereto, to counsel for the party by whom I am employed or retained, or to counsel from whom
I received the "Confidential Information" or "Confidential Information - For Outside Counsel
Only."
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9. I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the Order
in the above-entitled action.

Executed on
(Date)

(Signature)

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of foregoing document was served by electronic
mail on November 25, 2020 on all counsel ofrecord.

Isl Diane S. Wizig
Diane S. Wizig

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