Rodriguez v. Action Nissan Inc

Filing 38

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...So Ordered. (Signed by Judge Cathy Seibel on 3/15/2023) (vfr)

Case 7:22-cv-01344-CS Document 38 Filed 03/15/23 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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Elizabeth Rodriguez, Individually and
on behalf of all others similarly situated,
Case No.: 7:22-cv-01344
Plaintiff,
-against-

PROTECTIVE ORDER

Action Nissan Inc.,
Defendant.
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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 certain nonpublic and confidential material that will be
exchanged pursuant to and during the course of discovery in this case; and
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, the Parties acknowledge that this Protective Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords only
extends to the limited information or items that are entitled, under the applicable legal principles,
to confidential treatment; and
WHEREAS, the Parties further acknowledge that this Protective Order does not create
entitlement to file confidential information under seal; and
WHEREAS, in light of these acknowledgements, and based on the representations of the
Parties that discovery in this case will involve confidential documents or information the public
disclosure of which will cause harm to the producing person and/or third party to whom a duty of
confidentiality is owed, and to protect against injury caused by dissemination of confidential
documents and information, this Court finds good cause 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 Protective Order—including
without limitation the parties to this action, 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 Protective Order—shall adhere to the following terms:
1.
Any person subject to this Protective Order who receives from any other
person subject to this Protective Order any “Discovery Material” (i.e., information of any kind
produced or disclosed pursuant to and in course of discovery in this action) that is designated as
“Confidential” pursuant to the terms of this Protective Order (hereinafter “Confidential

Case 7:22-cv-01344-CS Document 38 Filed 03/15/23 Page 2 of 6

Discovery Material”) shall not disclose such Confidential Discovery Material to anyone else
except as expressly permitted hereunder.
2.
The person producing any given Discovery Material may designate as
Confidential only such portion of such material the public disclosure of which either is restricted
by law or will cause harm to the business, commercial, financial or personal interests of the
producing person and/or a third party to whom a duty of confidentiality is owed and that consists
of:
(a)
previously nondisclosed 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 nondisclosed information relating to ownership or control of
any non-public company;
(c)
previously nondisclosed sensitive commercial information relating to any
party’s business including, but not limited to, tax data; proposed strategic transactions or other
business combinations; internal audit practices, procedures and outcomes; trade secrets;
marketing plans and strategies; studies or analyses by internal or outside experts; competitive
analyses; customer or prospective customer lists and information; product or service pricing or
billing agreements or guidelines; and/or confidential project-related information;
(d)

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

(e)

any other category of information hereinafter given confidential status by

or
the Court.
3.
With respect to the Confidential portion of any Discovery Material other than
deposition transcripts and exhibits, the producing person or that person’s 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.
4.
With respect to deposition transcripts, a producing person or that person’s counsel
may designate such portion as Confidential 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 (consisting of question and answer) 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 and/or the specific exhibits 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 or exhibit (as the case may be), in their possession

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or under their control as directed by the producing person or that person’s counsel by the reporter.
During the 30-day period following the conclusion of a deposition, the entire deposition
transcript will be treated as if it had been designated Confidential.
5.
If at any time prior to the trial of this action, a producing person realizes that some
portion(s) of Discovery Material that she, he or it previously had produced without limitation
should be designated as Confidential, she, he or it may so designate by so apprising all prior
recipients of the Discovery Material in writing, and thereafter such designated portion(s) of the
Discovery Material thereafter will be deemed to be and treated as Confidential under the terms of
this Protective Order.
6.
No person subject to this Protective Order other than the producing person shall
disclose any of the Discovery Material designated by the producing person as Confidential to any
other person whomsoever, except to:
(a)

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

(b)
counsel retained specifically for this action, including any paralegal,
clerical and other assistant employed by such counsel and assigned to this matter;
(c)
outside vendors or service providers (such as copy-service providers and
document-management consultants, graphic production services or other litigation support
services) that counsel hire and assign to this matter, including computer service personnel
performing duties in relation to a computerized litigation system;
(d)
any mediator or arbitrator who 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 NonDisclosure Agreement in the form annexed as an Exhibit hereto;
(g)
any person retained by a Party 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 conducted in this action;

and
(i)
this Court, including any appellate court, and the court reporters and
support personnel for the same.

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7.
Prior to any disclosure of any Confidential Discovery Material to any person
referred to in subparagraphs 6(d), 6(f) or 6(g) above, such person shall be provided by counsel
with a copy of this Protective Order and shall sign a Non-Disclosure Agreement in the form
annexed as an Exhibit hereto stating that that person has read this Protective Order and agrees to
be bound by its terms. Said counsel shall retain each signed Non-Disclosure Agreement, hold it
in escrow, and produce it to opposing counsel either prior to such person being permitted to
testify (at deposition or trial) or at the conclusion of the case, whichever comes first.
8.
Any Party who objects to any designation of confidentiality may at any time prior
to the trial of this action serve upon counsel for the designating person a written notice stating
with particularity the grounds of the objection. If the Parties cannot reach agreement promptly,
counsel for all Parties will address their dispute to this Court in accordance with Section 3 of
District Judge Seibel’s Individual Practices and the Civil Case Discovery Plan and Scheduling
Order entered into by the Parties.
9.
Any Party who requests additional limits on disclosure (such as “attorneys’ eyes
only” in extraordinary circumstances) may at any time prior to the trial of this action serve upon
counsel for the receiving Party a written notice stating with particularity the grounds for the
request. If the Parties cannot reach agreement promptly, counsel for all Parties will address their
dispute to this Court in accordance with Section 3 of District Judge Seibel’s Individual Practices
and the Civil Case Discovery Plan and Scheduling Order entered into by the Parties.
10.
A Party may be requested to produce Discovery Material that is subject to
contractual or other obligations of confidentiality owed to a third party. Within two business days
of receiving the request, the receiving Party subject to such obligation shall inform the third party
of the request and that the third party may seek a protective order or other relief from this Court.
If neither the third party nor the receiving Party seeks a protective order or other relief from this
Court within 21 days of that notice, the receiving Party shall produce the information responsive
to the discovery request but may affix the appropriate controlling designation.
11.
Recipients of Confidential Discovery Material under this Protective Order may use
such material solely for the prosecution and defense of this action and any appeals thereto, and
specifically (and by way of example and not limitations) may not use Confidential Discovery
Material for any business, commercial or competitive purpose. Nothing contained in this Protective
Order, however, will affect or restrict the rights of any person with respect to its own documents
or information produced in this action. Nor does anything contained in this Protective Order limit
or restrict the rights of any person to use or disclose information or material obtained
independently from and not through or pursuant to the Federal Rules of Civil Procedure.
12.
Nothing in this Protective Order will prevent any person subject to it 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, however, that such person receiving a request, will provide written
notice to the producing person before disclosure and 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 person will have the right to oppose compliance with the

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subpoena, other compulsory process, or other legal notice if the producing person deems it
appropriate to do so.
13.
All persons seeking to file redacted documents or documents under seal with the
Court in connection with non-dispositive matters shall follow Section 11 of District Judge Seibel’s
Individual Practices and the Civil Case Discovery Plan and Scheduling Order entered into by the
Parties. With respect to dispositive matters, Section 2 of District Judge Seibel’s Individual Practices
shall be followed along with the Civil Case Discovery Plan and Scheduling Order entered into by
the Parties; the Parties shall use their best efforts to minimize such sealing.
14.
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
or supporting or refuting any motion for summary judgment, even if such material has previously
been sealed or designated as Confidential.
15.
Any Party filing a motion or any other papers with the Court under seal shall also
publicly file a redacted copy of the same, via the Court’s Electronic Case Filing system, that
redacts only the Confidential Discovery Material itself, and not text that in no material way
reveals the Confidential Discovery Material.
16.
Each person who has access to Discovery Material that has been designated as
Confidential shall take all due precautions to prevent the unauthorized or inadvertent disclosure
of such material.
17.
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 persons who receive such information and are
bound by this Protective Order in a manner that is secure and confidential. In the event that the
person receiving PII experiences a data breach, she, he or it immediately shall notify the
producing person of the same and cooperate with the producing person to address and remedy
the breach. Nothing herein shall preclude the producing person from asserting legal claims or
constitute a waiver of legal rights or defenses in the event of litigation arising out of the receiving
person’s failure to appropriately protect PII from unauthorized disclosure.

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18.
This Protective Order shall survive the termination of the litigation. Within 30
days of the final disposition of this action, all Discovery Material designated as “Confidential,”
and all copies thereof, shall be promptly returned to the producing person, or, upon permission
of the producing person, destroyed.
19.
All persons subject to this Protective Order acknowledge that willful violation of
this Protective Order could subject them to punishment for contempt of Court. This Court shall
retain jurisdiction over all persons subject to this Protective Order to the extent necessary to
enforce any obligations arising hereunder or to impose sanctions for any contempt thereof.
So Stipulated and Agreed:
/s/Manuel S. Hiraldo

By:______________________
Manuel S. Hiraldo, Esq.
Hiraldo P.A.
401 E. Las Olas Blvd., Suite 1400
Ft. Lauderdale, FL 33301
954-400-4713
[e-mail]
Counsel for Plaintiff
Dated: March 14, 2023

3/15/23

United States District Judge

John A. Darminio, Esq.
Wood, Smith, Henning & Berman LLP
5 Waller Avenue, Suite 200
White Plains, NY 10601
914-370-9471
[e-mail]
Counsel for Defendant
Dated: March 14, 2023

So Ordered:

_____________________
HON. CATHY SEIBEL

/s/John A. Darminio

By: ____________________