Bonilla v. Aguila

Filing 32

CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED. (Signed by Judge Kenneth M. Karas on 1/27/2025) (ar)

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~ Case 7:24-cv-01309-KMK-AEK Document 31 Filed 01/27/25 Page 1 of 11 UNITED STATE DISTRJCT COURT SOUTHERN DISTRJCT OF NEW YORK IV AN BONILLA, Case Number 24-CV-1309 (KMK) Plaintiff, CONFIDENTIALITY STIPULATION AND PROPOSED PROTECTIVE ORDER - against JOSHUA AGUILA Defendant, WHEREAS the Parties having agreed to the following terms of confidentiality, and the Court having found that good cause exists for the issuance of an appropriately tailored confidentiality order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, IT IS HEREBY STIPULATED, AGREED, and ORDERED that the following restrictions and procedures shall apply to the info1mation, testimony, and documents produced by the Parties, and as appropriate, non-parties, in this action: 1. As used herein, the term "document" is defined to be synonymous in meaning and equal in scope to the usage of this tem1 in Federal Rule of Civil Procedure 34(a) and Rule 26.3(c)(2) of the Local Civil Rules of this Court. The term "disclose" is defined as the release, transfer, provision of access to, or divulging in any manner of info1mation contained within a document. 2. As used herein, the term Personally Identifying Infonnation ("PII") includes any representation of information that permits the identity of an individual to whom the information applies to be reasonably infen-ed by either direct or indirect means (e.g., social security numbers, Page 1 of 11 . Case 7:24-cv-01309-KMK-AEK Document 31 Filed 01/27/25 Page 2 of 11 financial account numbers, passwords, and information that may be used for identity theft). PU exchanged in discovery shall be maintained by the receiving party in a manner that is secure. 3. As used herein, the term Confidential Material shall mean documents produced from the records of the New York State Depa1tment of Con-ections and Community Supervision ("DOCCS") and the information contained therein, the disclosure of which Defendant or DOCCS reasonably believe would jeopardize correctional or institutional safety, security or good order, or which contain information that is confidential under state or federal law. 4. Defendant may designate documents and witness testimony as Confidential Material. 5. Defendant may fu1ther designate as "Attorney's Eyes Only" any Confidential Material in the following categories: a. Repo1is 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; b. Health care (including, but not limited to, drug or substance abuse records), mental health care, and labor relations records that contain PTI concerning any employee ofDOCCS, any incarcerated individual in the custody ofDOCCS, or any person subject to community supervision by DOCCS, provided that, for mental health records, the review and determination required by New York Mental Health Law § 33 .16 has been completed before any records approved for release are produced, and provided that, for any records that constitute law enforcement disciplina1y records as defined in NYS Public Officers Law ("POL") § 86, such records shall be redacted consistent with obligations under POL§§ 89 and 96; c. Personnel records or other documents pe11aining to the individual's employment, including, but not limited to, records of disciplinary proceedings, pe1fom1ance evaluations, and counseling, which would not othe1wise be subject to a public right of access under the Freedom of Information Law ("FOIL"), Article 6 (Sections 84-90). Fmiher, provided that, for any records that constitute law Page 2 of 11 . Case 7:24-cv-01309-KMK-AEK Document 31 Filed 01/27/25 Page 3 of 11 enforcement disciplinary records as defined in POL § 86, such records shall be redacted consistent with obligations under POL§§ 89 and 96; d. Directives or written policies issued by DOCCS or any correctional facility operated by DOCCS that are not publicly available and are classified as "D" within the meaning of DOCCS Directive 0001, indicating that they contain information affecting the safety and security of con-ectional facilities and are handled as confidential material and rest1icted from unauthorized access; e. DOCCS training materials that are not publicly available and refer to or concern correctional, community supervision or institutional safety, security, or good order; f. Any other records, photographs, videos, maps, diagrams or materials that Defendants believe would compromise the safety or security of a DOCCS facility or office if disclosed to an incarcerated individual in the custody of DOCCS and/or the general public. 6. Transcripts of depositions taken in this Action, together with any exhibits, will be treated as Confidential Material and Attorney's Eyes Only in their entirety for thirty (30) days after being notified that a full and final copy of the deposition transcript is available. During that thirty (30) day period, either party may designate as Confidential Material and/or Attorney's Eyes Only, consistent with the meaning of what is described in Paragraphs 3 or 5 herein, specific portions of the transcript, by page and line, together with any deposition exhibits which contain Confidential Material referred to therein. Such designations must be provided to Plaintiffs counsel and Defendants' counsel in writing to be deemed effective. Any po11ion of the deposition transcript or exhibits not so designated during the thirty (30) day period will not be treated as Confidential Material or Attorney's Eyes Only. Nothing contained herein shalJ remove a previous Confidential Material or Attorney's Eyes Only designation from any exhibit mentioned, referenced, marked, identified or othenvi.se utilized during the deposition. Page 3 of 11 . Case 7:24-cv-01309-KMK-AEK 7. Document 31 Filed 01/27/25 Page 4 of 11 Notwithstanding the treatment as Confidential Material or Attomey's Eyes Only, with respect to personnel, health care or mental health care records that contain PII concerning any employee ofDOCCS or any incarcerated individual in the custody ofDOCCS, it is understood that the names, residence addresses, employee insurance information, Social Security numbers, NYSID and FBI numbers and/or Department Identification Numbers ("DIN") of any employee, incarcerated individual, or other person who has not provided Defendants with a duly executed authorization permitting disclosure of such information shall be redacted from the documents produced by Defendants or non-pa1iies. 8. An inadvertent failme to designate documents as Confidential Material or Attorney's Eyes Only material may be corrected by supplemental written notice given as soon as practicable. 9. To the extent Plaintiffs counsel obtained copies of documents described in Paragraphs 3 or 5 herein prior to the commencement of this action and may have disclosed them or their contents to others, it shall not be deemed a violation of this Stipulation and Protective Order, but such documents and information shall be treated hereafter as Confidential Material or Attorney's Eyes Only. 10. In the event a party challenges another party's or a non-party's designation of Confidential Material and/or Attorney's Eyes Only, counsel shall make a good faith effmt to resolve the dispute, and in the absence of a resolution, the challenging party may seek resolution by the Court, provided that such application is made within thilty days of receipt of said designated material. If an application to the Court is made, the Court's procedures for resolving discovery Page 4 of 11 . Case 7:24-cv-01309-KMK-AEK Document 31 Filed 01/27/25 Page 5 of 11 disputes shall be followed. Material designated as Confidential Material and/or Attorney's Eyes Only shall be treated as such until either the parties agree or the Comt mles otherwise. Nothing in this Protective Order constitutes an admission by any party or non-party that Confidential Material disclosed in this action is relevant or admissible. Each party reserves the right to object to the use or admissibility of the Confidential Material. 11. Confidential Material or Attorney's Eyes Only material produced pursuant to the terms of this Stipulation and Protective Order shall be utilized by the receiving party and their counsel solely for the purposes of this action and solely to the extent necessary for the litigation of this action, including any appeals thereof. 12. Confidential Material and Attorney's Eyes Only designated material shall be treated as confidential and not disclosed, except to the extent provided in this Stipulation and Protective Order or as otherwise ordered by a Court. 13. As for Confidential Material only, counsel for Plaintiff may allow Plaintiff to view and inspect Confidential Material as necessary to prosecute this action. However, Plaintiff shall not retain copies of Confidential Material. 14. The patties shall not disclose Confidential Material to any person not a party or a member of the staff of the pa1ties' attorneys' offices, except under the follo-..,ving conditions: a. Disclosure may be made only if necessary to the preparation or presentation of each party's case in this action, or trial of this action, or any appeal thereof. b. Disclosure before trial may be made only to: Page 5 of 11 . Case 7:24-cv-01309-KMK-AEK Document 31 Filed 01/27/25 Page 6 of 11 i. An expert or consultant who has been retained or specially employed by a party's attorneys in anticipation of litigation or preparation for this action; ii. An officer before whom a deposition is taken, including stenographic repo1iers and any necessaiy secretarial, clerical or other personnel of such officer; iii. A witness at deposition; 1v. The Com1, including court personnel; and v. Any other person agreed to by the Producing Pruty. c. Before any disclosure is made to a person listed in subparagraph (b)(i) above, the patty' s attorneys shall provide each such person with a copy of this Stipulation and Protective Order and such person shall consent in writing, in the Certification annexed hereto, not to use the Confidential Material for any purpose other than in connection with the prosecution or defense of this case and not to further disclose the Confidential Material except in testimony taken in this case. The signed consent shall be retained by counsel for the party disclosing the information. 15. If an individual employee ofDOCCS in the ordinary course of perfo1ming their daily job duties, um-elated to this litigation, discloses records containing any of the Confidential Material listed in Paragraphs 3 or 5 of this Order, such discovery and/or disclosure shall not be deemed a violation or waiver of this Order. 16. The disclosure of Attorney's Eyes Only material shall be limited to: a. Attorneys for Plaintiff; b. Defendant and attorneys for Defendant; An expe1i or consultant who has been retained or specially employed c. by a party's attomeys in anticipation of litigation or preparation for this action; Page 6 of 11 • Case 7:24-cv-01309-KMK-AEK Document 31 Filed 01/27/25 Page 7 of 11 d. An officer before whom a deposition is taken, including stenographic reporters and any necessary secretarial, clerical or other personnel of such officer; e. The Comt, including comt personnel; and f. Any other person agreed to by the Producing Party. Before any disclosure is made to a person listed in subparagraph (c) above, the pruty' s attorneys shall provide each such person with a copy of this Stipulation and Protective Order and such person shall consent in writing, in the Certification annexed hereto, not to use the Attorney's Eyes Only materials for any purpose other than in connection with the prosecution or defense of this case and not to further disclose the Attorney's Eyes Only materials except in testimony taken in this case. The signed consent shall be retained by counsel for the party disclosing the information. 17. Confidential Material or Attorney's Eyes Only material may be disclosed pursuant to order of a court, administrative agency or tribunal with actual or apparent authority over Plaintiff's counsel, provided, however, that in the event that Plaintiff's counsel intends to produce documents containing Confidential Material or Attorney's Eyes Only material or that contain Confidential Material or Attorney's Eyes Only material obtained from such documents in response to such order, Plaintiff's counsel shall serve notice of such order upon Defendants' counsel, identifying by Bates numbers the documents it intends to produce, not less than ten (10) business days prior to the production thereof, to give Defendant the oppo1tunity to seek a protective order against such production. 18. Except as consented to in writing by Defendant's counsel, or ordered by the Court, and notwithstanding any other term or provision contained in this Stipulation and Protective Order, Page 7 of 11 · Case 7:24-cv-01309-KMK-AEK Document 31 Filed 01/27/25 Page 8 of 11 Confidential Material shall not be released or disclosed in any manner to any person who is or was an incarcerated individual in the custody of DOCCS, except the Plaintiff. Disclosure of Confidential Material to the Plaintiff shall be subject to Paragraph 13 above. As for Attorney's Eyes Only material, Plaintiffs counsel may not show or provide copies of Attorney's Eyes Only material to any current or former incarcerated individual, including Plaintiff, nor may they discuss or otherwise disclose the contents of Attorney"s Eyes Only material with any current or former incarcerated individual, including Plaintiff. 19. The Confidential Material or Attorney"s Eyes Only material shall not be disclosed in open court \\rithout first affording Defendants' counsel an opportunity to contest disclosure and/or admissibility of such Confidential Material or Attorney's Eyes Only material. 20. If Plaintiffs attorneys intend to file with the Court any papers that attach, enclose, or contain Confidential Material or Attorney' s Eyes Only material (as defined in this Stipulation and Protective Order), and Defendant's attorneys do not provide consent in writing, Plaintiff's attorneys shall request or move the Comt to direct that such documents be filed under seal, following the Court's rnles, procedures, and practices for making such a request or motion. 21. If any Party or, as appropriate, non-party, intends to disclose Confidential Material during any hearing or trial before the Court, including th.rough argument, filings, or the presentation of evidence, such Paiiy or, as appropriate, non-party, may do so only after taking such steps as the Court, upon motion of the Producing Party, shall deem necessary to preserve the confidentiality of such Confidential Material. Page 8 of 11 . Case 7:24-cv-01309-KMK-AEK 22. Document 31 Filed 01/27/25 Page 9 of 11 Nothing herein shall be deemed to waive any applicable privilege. Pursuant to Fed. R. Evid. 502(d) and Fed. R. Civ. P. 26(b)(5)(B), [State Court equivalent] no privilege or protection is waived by disclosure com1ected with this action, nor is any such disclosure a waiver in any other federal or state proceeding, and any disclosed material is subject to retum to the producing party on demand without any obligation on the part of the producing party to demonstrate compliance with Fed. R. Evid. 502(b)(l)-(3) and Fed. R. Civ. P. 26(b)(5)(B) relating to inadvertent disclosure. However, nothing herein shall be deemed to waive the right of the receiving pa1ty to dispute the producing patty's claim of privilege. 23. Within sixty (60) days of the conclusion of this Action, including appeals, Plaintiff's counsel shall either return to Defendant's counsel all Confidential Material and/or Attorney's Eyes Only material, and any copies thereof, in their custody, possession or control and any documents containing Confidential Material and/or Attorney's Eyes Only material, in whole or in part, and any copies made therefrom or shall notify Defendants' counsel in writing that all such material has been destroyed. Notwithstanding the foregoing, Plaintiff's counsel may retain: ( 1) attorney work product that refers to or relates to Confidential Material and/or Attorneys' Eyes Only material and (2) copies of all documents filed with the Court, including documents filed under seal. Any retained Confidential Material and/or Attorney's Eyes Only material will continue to be protected by this Stipulation and Protective Order. 24. Nothing in this Order shall foreclose the patiies from separately negotiating and agreeing in writing to the confidential treatment of documents not contemplated by this Stipulation and Protective Order and identified in Paragraphs 3 and 5 herein. Page 9 of 11 , • Case 7:24-cv-01309-KMK-AEK Document 31 Filed 01/27/25 Page 10 of 11 Dated: - - - - - - LETITfA JAMES Attorney General of the State of New York ~;_,,, 7n. ~~ The Dratch Law Firm Plaza T\.VO 354 Eisenhower Parkway P.O.Box472 Livingston, New Jersey 07039 bdratch@njcounsel.com (973) 533-7285 Attorney for Plaintiff Owen M . Crowley Attomey General Fellow 28 Liberty Street New York, NY 10005 owen.crowley@ag.ny.gov (212) 416-8952 Attorney for Defendant SO ORDERED: Dated: -----------1/27/25 Page 10 of 11 , r Case 7:24-cv-01309-KMK-AEK Document 31 Filed 01/27/25 Page 11 of 11 CERTIFICATION I certify my understanding that Confidential Material and/or Attorney's Eyes Only material is being provided to me pursuant to the terms and restrictions of the Stipulation and Protective Order in _ _ _ _ _ _ _ _ _, currently pending in the United States District Comt for the _ _ _ _ _ District of New York. I farther certify that I have read the Stipulation and Protective Order and agree to be bound by it. I understand that all provisions of the Stipulation and Protective Order restricting the communication or use of Confidential Material and/or Attorney's Eyes Only material, including but not limited to any notes or other transcriptions made of Confidential Material and/or Attorney's Eyes Only material therefrom, shall continue to be binding during the pendency of and after the conclusion of this action. Dated: - - - - - - SIGNATURE PRINT NAME ADDRESS TELEPHONE NUMBER Page 11 of 11

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