Opinion
Civil Action Nos. 02-CV-3013 (LAK), 02-CV-7377 (LAK).
April 14, 2005
MILBERG WEISS BERSHAD SCHULMAN LLP, Daniel B. Scotti, Cary L. Talbot, New York, New York, BERNSTEIN LEIBHARD LIFSHITZ, LLP, Jeffrey M. Haber, Felecira L. Stern, New York, New York, Lead Counsel for Plaintiffs in No. 02 Civ. 3013.
THACHER PROFFITT WOOD, LLP, Robert Hermann, White Plains, New York, Attorneys for Plaintiffs in No. 02 Civ. 7377.
SCHULTE ROTH ZABEL, LLP, Brooks R. Burdette, David K. Momborquette, New York, NY, Attorneys for Defendants George S. Blumenthal, J. Barclay Knapp, Stephen Carter, and John F. Gregg.
KATTEN MUCHIN ZAVIS ROSENMAN, Joel W. Sternman, Julie Pechersky, New York, New York, Attorneys for Defendant George S. Blumenthal.
SKADDEN, ARPS, SLATE, MEAGHER FLOM, LLP, Seth M. Schwartz, New York, New York, Counsel for Defendant NTL Europe, Inc. formerly known as NTL, Inc.
STIPULATION AND [PROPOSED] ORDER GOVERNING CONFIDENTIAL INFORMATION
WHEREAS, various parties and non-parties will be responding to discovery requests in this litigation (the "litigation" or "action");
WHEREAS, the parties and certain non-parties desire that discovery provided in this litigation be subject to a confidentiality agreement;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the undersigned attorneys for the respective parties hereto, subject to further Order of the Court, as follows:
Definitions
1. "Party" shall mean any defendant who has been named in these actions at any time, any plaintiffs in 02-CV-7377, and any class member appointed as lead plaintiffs by the Court in 02-C V-3013.
2. "Producing Party" shall mean any Party or non-party producing documents or other information in these actions.
3. "Documents" shall mean anything that may be considered to be a document or tangible thing under the Federal Rules of Civil Procedure including, but not limited to: interrogatory answers served by any Party to these actions; responses to requests to admit served by any Party to these actions; documents produced by any Producing Party, whether pursuant to formal discovery or by informal agreement; transcripts of and exhibits to depositions taken in these actions; and any portions of any documents filed in these actions that quote from or summarize any of the foregoing documents.
Designation of Confidentiality
4. A Producing Party may, at its option, designate as "Confidential" such information as the Producing Party in good faith deems confidential, in accordance with Rule 26 of the Federal Rules of Civil Procedure, on the basis that such in formation constitutes a trade secret or other sensitive research, development or commercial information, employee or labor relations materials or personal information. (Documents that are designated as "Confidential" are hereinafter referred to as "Confidential Documents".) Such designation may be made either by stamping or otherwise inscribing "Confidential," or substantially similar words, upon every page of the document which is confidential. If a Producing Party inadvertently produces documents or other materials that it considers to be "Confidential" without such designation, the Producing Party may subsequently designate such information or documents as "Confidential" by delivering written notice of such designation to the other parties.
5. To the extent that matter stored or recorded in the form of electronic or magnetic media (including information, files, databases or programs stored on any digital or analog machine-readable devise, computers, discs, networks or tapes) is produced in such form, the Producing Party may designate such material as Confidential by cover letter referring generally to such matter and by affixing (where possible) a label on the media or its casing indicating such designation.
6. In the event that non-parties produce Documents or information in connection with these actions, the parties and all other persons subject to this Order agree that production by non-parties of such Documents or information shall be made subject to the provisions of this Order.
Designation of Deposition Transcripts
7. In the case of depositions, designation of the transcript or portion of the transcript (including exhibits) that contains Confidential information shall be made by a statement by counsel to that effect on the record during the course of the deposition or by written notice, sent by counsel to all parties within ten business days after receiving a copy of the transcript thereof. All deposition transcripts shall be treated as Confidential within the meaning of this Order during the pendency of the ten-day period for giving written notice. If a Confidential designation is made, either on the record at the deposition or by way of written notice as described above, the Court reporter shall be directed to affix the appropriate legend on the cover page and on all appropriate pages of the transcript, and to each copy thereof (the parties may modify this procedure for any particular deposition through agreement on the record at such deposition, without further order of the Court).
Use of Confidential Information
8. No Party, including a party's agents, consultants, experts, deponents, witnesses and attorneys, receiving Confidential Documents shall make use of any Confidential Document, or any information contained therein, for any purpose whatsoever other than the prosecution or defense of these actions, nor shall any Confidential Document, or any information contained therein, be disclosed by any such Party except as provided herein.
9. Confidential Documents and information contained in them may be referred to in interrogatory answers, responses to requests to admit, pleadings, motions, briefs, and other documents filed with the Court, and may be marked as deposition exhibits in these actions; provided that any such paper that is filed with the Court and contains or refers to Confidential information shall be filed under seal and kept under seal until further order of the Court, be placed in a scaled envelope that is marked with the title of the action(s) and a brief description of the contents and bears a legend substantially in the form of the following:
CONFIDENTIAL
This envelope contains documents that are subject to an order governing discovery and the use of confidential information entered by the Court in these actions on [date]. This envelope shall not be opened nor shall the contents hereof be displayed except at the direction of the Court.
10. Any Confidential Document that is designated by any Party may be offered into evidence in open court at trial unless the Producing Party obtains an appropriate protective order from the Court. Use of any Confidential material in any court proceeding shall not waive the applicability of this Protective Order as to such material. Parties using Confidential material in open court shall use reasonable best efforts to minimize disclosure to persons not authorized to see such material pursuant to paragraph 12 below. In the event that an appellate motion or brief which contains Confidential material is filed in this litigation by any Party to this Stipulation, such Party agrees to consult with the Producing Party concerning the use of such Confidential material prior to making the appellate filing. If the parties are unable to reach an accord as to the use of such Confidential material in the appellate filing, the Producing Party may seek an appropriate order from the appellate court. In any such motion, the Producing Party has the burden of establishing that the appellate brief or motion should be filed under seal. Challenges to Confidential Designation
11. A Party shall not be obligated to challenge the propriety of a Confidential designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. In the event a Party objects to the Confidential designation under this Protective Order by a Producing Party of any document (or part thereof), the objecting party shall consult with the Producing Party to attempt to resolve their differences. If the parties are unable to reach an accord as to the proper designation of the material, the challenging party may move the Court to remove the Confidential designation. In any such motion, the Producing Party has the burden of establishing that the Confidential designation is proper. If a motion is made, any documents or other materials that have been designated Confidential shall be treated as Confidential until such time as the Court rules that such material should not be treated as Confidential.
Disclosure of Confidential Information
12. Except with the prior written consent of the Producing Party requesting Confidential treatment, no document designated as Confidential and no information contained therein may be disclosed to any person other than the following:
(a) Any Party to these actions and any officers, directors, partners or employees of any Party. In the case of plaintiffs in 02-CV3013, a Party, for purposes of this agreement, shall mean any person appointed by the Court as a lead plaintiff or any person approved by the Court to act as a class representative.
(b) Counsel for any Party to these actions and any attorneys, paralegals, office clerks, secretaries and other personnel working under their supervision and assigned to perform duties in connection with the prosecution or defense of these actions. Such counsel will include both in-house legal staff and outside counsel in the case of a corporate party. In the case of plaintiffs in 02-CV-3013, such counsel shall mean Plaintiffs' Co-Lead Counsel and additional plaintiffs' counsel designated by Plaintiffs' Co-Lead Counsel.
(c) Any person who has authored, received or otherwise been provided access (in the ordinary course, outside the context of this litigation) to the Confidential information.
(d) Any consultants or experts retained by any counsel of record for any Party to the litigation who agree to be bound by the terms of this Order in the manner set forth in the form attached as Exhibit A.
(e) Any and all witnesses during testimony (including depositions) and their counsel.
(f) Any other person whom a Party in good faith determines may be a potential witness at deposition or at trial who agree to be bound by the terms of this Order in the manner set forth in the form attached as Exhibit A.
(g) Any other person whom counsel for the parties agree in writing should have access to such Confidential information who agree to be bound by the terms of this Order in the manner set forth in the form attached as Exhibit A.
(h) Deposition and trial court reporters.
(i) The Court, court personnel and jurors.
(j) Any other person whom the Court directs should have access to the Confidential information.
13. Counsel for the Parties shall be responsible for maintaining a list of all consultants and experts to whom Confidential Documents or information are provided pursuant to paragraph 12(d), as well as copies of the agreements signed by such consultants or experts. The names of persons who have signed the form attached as Exhibit A shall not be discoverable except upon a showing of good cause and by order of the Court. Every person given access to Confidential Documents shall not make copies, duplicates, extracts, summaries or descriptions of such material, or any portion thereof, except for use in connection with this Litigation, and each such copy is to be treated in accordance with the provisions of this Stipulation and Order.
14. In the event a Party desires to disclose information designated as Confidential by a Producing Party to any person other than those categories of persons enumerated in paragraph 12 above, counsel for the Party wishing to disclose the Confidential information shall give at least three (3) business days' written notice to counsel for the Producing Party and all other Parties in this case, together with identification of each document or deposition testimony to be disclosed and the identity (name, address, and occupation) of each person to whom such disclosure is intended. The Producing Party or the other Parties in this case shall have three (3) business days thereafter in which to notify counsel seeking disclosure of any objection to such disclosure. In the event that the Producing Party or any other Party objects to the intended disclosure after notice, counsel shall endeavor to negotiate all objections to disclosure. In the event negotiations fail to resolve all objections, counsel for the Party wishing to disclose the Confidential Documents and information may, with notice to counsel for all Parties in the case and counsel for any relevant Producing Party, petition the Court within ten (10) business days for an order to allow disclosure. Upon notification of intent to file such a petition, disclosure shall be prohibited unless and until such a requested order is granted by the Court.
15. Nothing herein shall impose any restrictions on the use or disclosure by a Party of any document, material or information legitimately obtained by such Party independently of the discovery proceedings in these actions. This Order shall not apply to any document, testimony or other information that: (i) is already in the Party's possession, or (ii) is or becomes generally available to the public other than as a result of disclosure in violation of this Order, or (iii) is or becomes available to a Party other than through formal discovery in these actions or any other action involving any of the Parties.
16. Nothing herein shall restrict or preclude any Producing Party from disclosing its own Confidential information to any person or entity without regard to the provisions of this Protective Order.
17. Nothing herein shall restrict or preclude any Party from responding to a subpoena or other request issued in another action or proceeding. However, upon receipt of a subpoena or other request for Confidential information, the Party shall forward a copy of the subpoena or request to the Producing Party within three (3) business days of service and afford the Producing Party a reasonable time after the receipt of such notice to contest the production of Confidential information sought by the subpoena or other request. If the Producing Party fails to seek or obtain an appropriate order, the Party responding to the subpoena or other request will not be deemed in breach of this Protective Order by producing Confidential in formation sought by the subpoena or other request.
Miscellaneous
18. The inadvertent production of documents subject to the attorney-client privilege or the attorney work product privilege, or any other ground on which production should not be made, will not waive such privileges or protections; provided, however, that this Protective Order shall not prevent any Party from moving to compel production of allegedly privileged documents on any grounds. Upon a request from a Producing Party that has inadvertently produced any document which it believes may be subject to the attorney-client or attorney work-product privilege, any Party receiving said document shall immediately return such document to the Producing Party. Nothing herein, however, shall prevent the Party from preparing a record for its own use containing the date, author, addressees, and topic of the document solely for purposes of any motion to compel the documents' production. Such a record of the identity and nature of a document may not be used for any purposes other than preparation of such a motion to compel in these actions.
19. This Protective Order may be amended only by the written agreement of counsel for the Parties, or upon motion seeking relief from or modification of this Protective Order from the Court. Nothing in this Protective Order shall be construed to prevent a Producing Party from seeking such further provisions regarding confidentiality as it deems appropriate, or to prevent plaintiffs and/or lead plaintiffs from seeking relief from this Protective Order.
20. The Parties agree to be bound by the terms of this Protective Order pending the entry of this Order, or an alternative thereto which is satisfactory to all Parties, by the Court, and any violation of its terms shall be subject to the same sanctions and penalties, as if this Order had been entered by the Court.
21. Nothing in this Protective Order shall affect any privilege or right that any Producing Party might otherwise have against the discovery of any materials sought by any Party herein. Notwithstanding this Protective Order, any Producing Party may move the Court for an order imposing additional restrictions upon discovery of documents or other material, including but not limited to, an order that production thereof not be had.
22. The provisions of this Protective Order regarding Confidential information shall not apply to documents or information that were, are, or become public knowledge, as long as they did not become public in violation of this Protective Order.
23. Within thirty (30) days of the conclusion of these actions, including exhaustion of all appeals, all documents or other data designated as Confidential (including summaries and excerpts) and all copies thereof, in the possession of or under the control of any Party or officer or employee thereof, counsel retained by such Party, retained expert or other person described in paragraph 12(d) hereof shall be destroyed promptly or returned to counsel for the Producing Party that designated the information as Confidential, unless otherwise specifically agreed in writing by the Producing Party. However, subject to the terms of this Order, the parties and their counsel may retain copies of briefs and other papers that contain or constitute such Confidential information, including correspondence, deposition transcripts, trial exhibits of record and attorney's work product (excluding copies of any annexed materials that have been designated as Confidential information). Any such briefs and other papers shall continue to be treated pursuant to the terms of this Order. Upon the request of counsel for the Producing Party, counsel signing this Protective Order shall provide a letter affirming compliance with the requirements of this paragraph.
24. This Protective Order shall remain in effect after the final determination of these actions, unless otherwise ordered by the Court.
25. Any party covered by this Order may at any time apply to the Court for relief from any provision of this Order.
26. The Court may impose appropriate sanctions for the disclosure of Confidential Documents and information in violation of this Protective Order.
27. This Stipulation may be executed in counterparts. Each counterpart when so executed shall be deemed an original, and all shall constitute the same instrument.
SO ORDERED.
EXHIBIT A
I hereby acknowledge that I will be receiving Confidential documents and information pursuant to the terms of a Stipulation and Protective Order entered in the actions, entitled In Re NTL, Inc. Securities Litigation, Consolidated Civil Action No. 01-CV-1855, and Gordon Partners; Frederick L. Gordon; and Sam D. Gordon vs. George S. Blumenthal; Barclay Knapp; and John F. Gregg, Civil Action No. 02-CV-7377. I have been given a copy of; and have read and understand, the Protective Order, and I agree to be bound by the terms and conditions of that Order. I understand that (i) I am to make no copies of any such Confidential documents and information except as is necessary for use in the referenced actions, and (ii) such Confidential documents and information and any copies thereof are Confidential materials to remain in my personal custody until I have completed my assigned duties, whereupon they are to be returned to counsel who provided me with such Confidential information or destroyed. I agree not to disseminate any information derived from such Confidential information to anyone, or make disclosure of any such information, except for the purposes of the referenced proceedings, or as permitted by the Stipulation and Protective Order, or by further Order of the Court.
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