Doe v. State University of New York Purchase College

Filing 49

CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Magistrate Judge Paul E. Davison on 1/17/2023) (ks)

Case 7:21-cv-08417-KMK-PED Document 49 Filed 01/18/23 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOHN DOE,
Plaintiff,
- against STATE UNIVERSITY OF NEW YORK PURCHASE
COLLEGE,
Defendant.

PROPOSED
CONFIDENTIALITY
STIPULATION AND
PROTECTIVE ORDER
21 Civ. 8417 (KMK)(PED)

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PROPOSED CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER
WHEREAS, discovery (including without limitation, interrogatories, document
productions and depositions) and other proceedings in Doe v. State University of New York
Purchase College, No. 21-CV-8417 (KMK)(PED) (the “Litigation”), may involve the production
or disclosure of Confidential Material (as defined herein);
WHEREAS the Parties agree that a protective order is necessary to ensure appropriate
protection of privacy interests and other legitimate interests in confidentiality;
WHEREAS the Parties agree to the terms of this Order (“Protective Order”) to protect their
confidential documents, things, and information;
WHEREAS this Protective Order does not operate to mandate disclosure of any particular
information and does not work to waive any objections any Party may have to the production of
any particular information in response to a demand in this Litigation; and
WHEREAS good cause exists for the entry of this Protective Order,
PURSUANT to Federal Rule of Civil Procedure 26(c), IT IS HEREBY STIPULATED
AND ORDERED THAT:

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1.

This Protective Order shall govern the handling of all information and/or materials

produced or disclosed during the course of the Litigation, by any Party or Non-Party, including
but not limited to information produced or disclosed:

2.

a.

in any pleading, document, affidavit, affirmation, declaration, interrogatory
answer, responses to requests for admission, brief, motion, transcript, or
any other written, electronic, recorded or graphic material;

b.

in testimony given in a deposition, court hearing, or trial, and any copies, or
summaries of such information; or

c.

through any manner or means of discovery, including entry onto land or
premises and inspection of books, records, documents and tangible things.

As used herein, the term “Discovery Material” refers to that information and/or

materials described in 1(a)-(c) above. A Party that designates Discovery Material as Confidential
(“Confidential Material”) is the “Designating Party.”
3.

As used herein, “the Litigation” refers to all proceedings in the above-captioned

case, including any appeals and the implementation of any remedy agreed to by the Parties or
ordered by the Court.
4.

The following documents and information produced or provided by the Parties or

Non-Parties during the course of this Litigation, except information which is publicly available,
may be designated by any Party as Confidential Material:
a.

all documents and information containing personal health or disability
information of any Party hereto, or any other person, including but not
limited to documents and information covered by the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”) and records
disclosed by a Party or Non-Party pursuant to any Authorization to Release
Medical Records executed by the Plaintiff in this action;

b.

all documents and information containing mental health or psychiatric
information of any Party hereto, or any other person, including but not
limited to documents and information covered by HIPAA and records

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disclosed by a Party or Non-Party pursuant to any Authorization to Release
Psychotherapy Notes executed by the Plaintiff in this action;
c.

all documents and information relating to the private, personal, and nonpublic information of Non-Parties to the Litigation;

d.

all documents and information that relate to the personnel records for any
Non-Party employee or former employee of the State University of New
York (“SUNY”);

e.

any documents and information which counsel for all Parties agree should
be Confidential Material;

f.

any other documents and/or information which counsel believes in good
faith to be Confidential Material that can be protected from disclosure
pursuant to Federal Rule of Civil Procedure 26(c);

g.

any Discovery Materials that the Court directs to be produced as
Confidential subject to this Order; and

h.

testimony about the documents and information covered by Paragraph 4(a)(g).

The parties should meet and confer if any production requires a designation of “For Attorneys’ or
Experts’ Eyes Only.”
5.

Any summary, compilation, notes, copy, electronic images, or database containing

Material and/or information designated as “Confidential” shall be subject to the terms of this
Protective Order to the same extent as the Material or information from which such summary,
compilation, notes, electronic image, or database is made or derived.
6.

Any Party producing Confidential Material described in Paragraph 4 of this

Protective Order (“the Producing Party”) may designate such Discovery Material as Confidential.
To designate the Discovery Materials as Confidential, the Producing Party shall mark the
document with the words “CONFIDENTIAL,” “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER,” or with a similar legend. Where such marking of each piece of such
Material is impossible or impractical (such as productions of groups of documents in native form),
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the Producing Party shall designate in writing that information or Material it regards as containing
Confidential Material at the time of its production. In the case of any Discovery Material that is
in the form of an audio or video recording (whether analog or digital) that cannot be designated
“Confidential” in a practicable and cost-efficient manner, it shall be sufficient for the Producing
Party to clearly mark the CD-ROM, DVD, or other physical medium containing such electronic
data or documents with the appropriate designation. So-marked documents, and the information
contained therein, shall not be disclosed to anyone by the Party receiving the Confidential Material
(“the Receiving Party”), except as provided in this Protective Order. The designation of Discovery
Material as Confidential constitutes a representation by the Producing Party that counsel has
adequately reviewed the Discovery Material and has determined that there is good cause for the
designation under Paragraph 4 of this Protective Order.
7.

Unless otherwise ordered by the Court or agreed to by the Parties in writing,

Confidential Material:
a.

shall be used by the Receiving Party solely for the purpose of, or in
investigation and preparation for, proceedings, hearings, depositions,
motions, and trial in this action, and not for any other purpose, including in
any other actions or claims interposed by the Plaintiff or any other person
against the Defendant.

b.

Confidential Material may be disclosed by the Receiving Party only to:
i.

the Parties;

ii.

counsel representing the Parties, including in-house counsel,
employees of counsel or counsel’s office, persons acting under
counsel’s supervision, and employees and independent contractors
of counsel who are directly involved in preparation or litigation of
this action;

iii.

current employees of SUNY, including, without limitation,
Purchase College, who would normally have access to such
information;
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8.

iv.

current or former employees of SUNY, including, without
limitation, Purchase College, other than those who would normally
have access to such information, solely for purposes of consultation
or questioning regarding claims and defenses at issue in this
Litigation;

v.

any expert or consultant who has been retained by any Party for
purposes of the Litigation and any necessary assistants or employees
under the expert’s or consultant’s direct supervision;

vi.

for purposes of investigation, preparation, deposition, or trial in this
action only, any deponent, witness, or potential deponent or
potential witness who authored or otherwise had or should have had
access to, familiarity with, or knowledge of the facts and
circumstances to which the Confidential Material relates, including
but not limited to current or former employees of SUNY;

vii.

any other person as to whom the Parties agree in writing in
accordance with the procedures set forth in Paragraph 8 of this
Protective Order;

viii.

court reporters, as necessary for the conduct of the Litigation; and

ix.

the Court and personnel employed by it.

Prior to the disclosure of any Confidential Material by a Receiving Party to a person

identified in subparagraphs 7(b)(v) or (vii), counsel for the Party proposing to make such
disclosure shall ensure that a copy of this Protective Order has been delivered to such person, and
shall obtain that person’s written agreement to be bound by the terms of this Protective Order and
consent to the Court’s jurisdiction for the purpose of enforcing this Protective Order in the form
of the Non-Disclosure Agreement annexed hereto as Exhibit A. Counsel of record shall maintain
a list of the names of all persons to whom such materials or information is disclosed and such list
shall be available for inspection by counsel for the Designating Party upon order of the Court
following a showing of good cause. The parties further agree that electronic signatures shall be
sufficient and they shall be as binding upon the individuals as the original.

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9.

All Confidential Material shall be maintained by the Receiving Party in a

confidential manner, and shall not be given, shown, or described to any persons other than those
described in Paragraph 7, and only pursuant to the procedures in Paragraph 8.
10.

A Receiving Party shall not file Confidential Material in the record of the Litigation

or with the Court, except as follows:

11.

a.

A Receiving Party may file unredacted Confidential Material in the record
of this Litigation, or with the Court, upon written consent by counsel for the
Producing Party.

b.

If a Party uses Confidential Material in a pleading, motion, or other
submission filed with the Court without the written consent of counsel for
the Producing Party, the Party using the Confidential Material shall seek to
file its submission electronically under seal or with appropriate redactions
in accordance with the Court’s Local Rules and Individual Practices.

c.

If a Receiving Party intends to use or elicit testimony concerning
Confidential Material at trial or in open court on any occasion in a manner
that will disclose the Confidential Material, the Receiving Party intending
to so use Confidential Material shall take all steps reasonably required to
protect the material’s confidentiality during such use. Nothing contained
herein shall be deemed to restrict the Court’s handling of Confidential
Material or to cause a Party to be in breach of this Protective Order when
acting in compliance with an order or direction of the Court.

Any Party, through its counsel, may designate as Confidential any deposition

testimony that the Party believes in good faith discusses or discloses Confidential Material. Such
designation may be made orally on the record of a deposition or by written notice within 30 days
from the receipt of the final (i.e., not “draft” or “rough”) transcript. The court reporter shall be
notified of any confidentiality designations made after the final transcript is sent to the Parties.
Upon receipt of a confidentiality designation, all Parties in possession of the deposition transcript
shall be required to mark the designated pages accordingly on all copies of the transcript and treat
those pages of the transcript appropriately. Subject to any requirements of the Court, the reporter
for any deposition or hearing shall affix a legend of “CONFIDENTIAL” to pages that contain
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testimony designated as such. All transcripts shall be treated as “CONFIDENTIAL” until the time
to designate has expired.
12.

In the event that any Party obtains documents or information from a Party or Non-

Party that it believes are confidential, any Party may designate such documents or information as
Confidential Material pursuant to this Protective Order and it shall be treated as such in accordance
with this Stipulation and Protective Order.
13.

Any person making copies of Confidential Material must ensure that the copies

adequately reflect the “Confidential” designation.
14.

In the event of a disclosure to an unauthorized Party of information designated

under this Protective Order as Confidential, the disclosing party shall without delay (a) notify the
Designating Party of the disclosure; (b) take all reasonable steps to recover the document, material
or other information, and (c) report to the Designating Party immediately upon recovery or failure
to recover the Confidential Material.
15.

Inadvertent or unintentional failure to appropriately designate a document as

Confidential shall not be deemed a waiver of a Party’s claim of confidentiality. Such inadvertent
failure to designate may be corrected by written notice to the other Parties and a supplemental
production, each given as soon as practicable. Thereafter, the disclosed document or information
shall be treated as Confidential Material.
16.

A designation of Confidential Material by one Party shall not be deemed an

acknowledgment of confidentiality by any other Party except for purposes of this Stipulation. At
any time, a Party may object to a designation of Discovery Material as Confidential, in whole or
in part, by communicating the objection in writing to the Designating Party and stating the reasons

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for the objection. Within ten (10) days after receiving an objection, the Designating Party shall
respond in writing to the objecting Party, either withdrawing the designation or providing the
reasons why the designation will not be withdrawn. Within ten (10) days thereafter, the Parties
shall engage in a good faith effort amongst themselves to resolve the dispute and, if the dispute is
not then resolved, the objecting party may seek a resolution from the Court pursuant to the terms
of this Stipulation for such Discovery Material, certifying that good faith efforts to resolve the
dispute were attempted but failed, and setting forth the reasons that the “Confidential” designation
should not be enforced. The Party or Non-Party that has designated the Discovery Material as
“Confidential” shall bear the burden of proving that it is entitled to such designation and has made
a good faith designation thereof.

The Discovery Material shall continue to be treated as

Confidential while such a motion is pending. Any Party may request an in camera review of the
information that is the subject of a dispute regarding a confidentiality designation.
17.

Nothing in this Protective Order shall be construed to limit, modify, or interfere in

any manner with:

18.

a.

The disclosure obligations of SUNY under the New York Freedom of
Information Law (“FOIL”), New York Public Officers Law Article 6, and
related state law, regulations, and judicial decisions;

b.

The interpretation, application, and implementation by SUNY, their public
access officers, and state courts, of FOIL and related state law, regulations,
and judicial decisions as well as other laws and regulations;

c.

The Parties’, including any employee or official of SUNY, use of their own
Confidential Material and/or Discovery Material;

Nothing contained herein is intended to or shall serve to limit in any way any

Party’s use of its own documents, Confidential Material and/or Discovery material.

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19.

This Protective Order does not preclude a Party from raising or preserving

objections to discovery and does not waive any Party’s right to assert attorney-client privilege,
attorney work product doctrine, or any other privilege or immunity as the Litigation proceeds.
20.

This Protective Order does not require production of documents as to which

objections or privileges apply.
21.

Fed. R. Civ. P 26(b)(5)(B) shall govern the return and use of materials produced in

discovery which are subject to a claim of privilege or of protection as trial preparation material
and the determination of claims of privilege and/or protection regarding such documents.
22.

If any Party is served with a subpoena or other notice in another proceeding or from

a regulatory or other governmental agency requesting or compelling the production of materials
produced by another Party and designated as Confidential, the Party so requested shall give
immediate written notice to the Designating Party of such subpoena or other notice. Upon receipt
of such notice, the Designating Party so notified shall bear the burden of opposing, if appropriate,
the subpoena or other notice on grounds of confidentiality. In no event shall production or
disclosure be made before reasonable notice is given to the Designating Party.
23.

Nothing in this Protective Order shall prejudice the rights of any Party to contest

the alleged relevance, admissibility, or discoverability of Confidential Material sought.
24.

Nothing in this Protective Order shall negate or obviate any requirement or

obligation of confidentiality independent of this Protective Order.
25.

This Protective Order shall survive and remain in full force and effect after the

termination of the Litigation. Neither the termination of this lawsuit nor the termination of

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employment of any person with access to any Confidential Material shall relieve such person from
the obligation of maintaining the confidentiality of such information.
26.

At the request of the Producing Party, upon the final conclusion of the Litigation,

including any post-trial motions, appellate proceedings, and the period for implementation of any
remedy agreed to by the Parties or ordered by the Court, all matter designated as Confidential
(including all copies of such documents or identifiable portions thereof and all documents
reflecting the documents or their contents) shall be returned promptly by the Receiving Party to
the Producing Party, or, in lieu of their return, such documents may be destroyed (as by shredding).
The Receiving Party must certify in writing the return or destruction of all such documents within
thirty (30) days of the Producing Party’s request for return or destruction. However, counsel for
the Receiving Party may retain their work product, copies of court filings, and official transcripts
with all exhibits thereto, provided any and all retained documents are kept confidential and will,
along with the information contained therein, continue to be treated as Confidential pursuant to
this Protective Order. This Paragraph does not apply to the Court’s copies of matter designated as
Confidential.
27.

Non-Parties from whom discovery is sought by the Parties to this Protective Order

may designate materials as Confidential, consistent with the terms of this Protective Order,
provided that such Non-Parties agree in writing to be bound by the terms of this Protective Order
prior to the production of any such materials by executing the Non-Disclosure Agreement annexed
hereto as Exhibit A. Under such circumstances, all duties applicable to the Parties that are
signatories to this Protective Order shall apply to such Non-Parties.

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28.

This Protective Order is intended to be contractual in nature and may not be

modified or changed orally. All changes or modifications shall be made in writing executed by
the Parties and approved by the Court.
29.

The Parties reserve the right to seek modification of this Protective Order by

application to the Court for good cause shown.
30.

Until such time as this Protective Order has been entered by the Court, the Parties

agree that upon execution by the Parties, the Parties will treat this Protective Order as though it
had been “So Ordered.”
31.

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 receiving party in a manner that is secure.
The undersigned counsel of record stipulate that the Court should enter the above
Protective Order as an Order of the Court.
Dated: ___________ __, ____

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Aidala, Bertuna & Kamins, PC
Attorneys for Plaintiff

LETITIA JAMES
Attorney General
State of New York
Attorney for Defendant
SUNY
By:

By:
/s/ Michael DiBenedetto
Michael DiBenedetto, Esq.
Diana Fabi Samson, Esq.
546 Fifth Avenue, 6th Floor
New York, NY 10036
Tel. [phone]
[e-mail]
[e-mail]

/s/ Mark Ferguson
Mark R. Ferguson
28 Liberty Street
New York, NY 10005
Tel. [phone]
[e-mail]

SO ORDERED:

________________________
Paul E. Davison, U.S.M.J.
Dated: 1/17/23

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EXHIBIT A
NON-DISCLOSURE AGREEMENT
I hereby acknowledge that I have read a copy of the Confidentiality Stipulation and Order
(“Protective Order”) entered in the Action presently pending in the United States District Court
for the Southern District of New York entitled Doe v. State University of New York Purchase
College, no. 21-CV-8417 (KMK)(PED), that I understand the terms thereof and agree to be bound
by its terms, and that I submit myself to the jurisdiction of the Court, wherever I may be, for the
enforcement of this Protective Order.
Signed under penalty of perjury of the laws of the United States of America, this _____
day of ______________, 20 .

____________________________________
Signature
_______________________________________
Name (Printed)

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