Opinion
1:21-cv-03649-ER
09-22-2022
KATHRYN SHIBER, Plaintiff, v. CENTERVIEW PARTNERS LLC, Defendant.
Brian Heller SCHWARTZ PERRY & HELLER, LLP James F. CLAYMAN ROSENBERG KIRSHNER & LINDER LLP Attorneys for Plaintiff Kathryn Shiber Jennifer J. Barrett Hope D. Skibitsky QUINN EMANUEL URQUHART & SULLIVAN, LLP Attomeys for Defendant Centerview Partners LLC
Brian Heller SCHWARTZ PERRY & HELLER, LLP James F. CLAYMAN ROSENBERG KIRSHNER & LINDER LLP Attorneys for Plaintiff Kathryn Shiber
Jennifer J. Barrett Hope D. Skibitsky QUINN EMANUEL URQUHART & SULLIVAN, LLP Attomeys for Defendant Centerview Partners LLC
STIPULATED PROTECTIVE ORDER
HONORABLE EDGARDO RAMOS UNITED STATES DISTRICT JUDGE
1. PURPOSES, AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of confdential, proprietary, or private information for which special protection fom public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order (the "Order"). The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confdential treatment under the applicable legal principles.
2. DEFINITIONS
(a) "Challenging Party'' means a Party or Non-Party that challenges the designation of information or items under this Order
(b) "CONFIDENTIAL Information or Items" means information (regardless of how it is generated, stored or maintained) or tangible things that a party believes qualify for protection under Federal Rule of Civil Procedure 26(c).
(c) “Counsel.” without a qualifier, means Outside Counsel of Record and House Counsel (as well as their support staff).
(d) “Designating Party' means a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL'' or who designates material produced by another Party' or a Non-Party' as “CONFIDENTIAL.”
(e) “Disclosure or Discovery Material” means all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery' in this matter.
(f) “Expert” means a person with specialized knowledge or experience in a matter pertinent to the litigation who (1) has been retamed by a Party' or its counsel to save as an expert witness or as a consultant in this action, (2) is not a past or current employee of a Party' or of a Party's competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party's competitor.
(g) “House Counsel” means attorneys who are employees of a party' to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel.
(h) “Non-Party” means any' natural person, partnership, corporation, association, or other legal entity not named as a Party' to this action.
(i) “Outside Counsel of Record” means attorneys w'ho are not employees of a party' to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party' or are affiliated with a law firm w'hich has appeared on behalf of that party'.
(j) “Party” means any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).
(k) “Producing Party” means a Party or Non-Party that produces Disclosure or Discovery Material in this action.
(1) “Professional Vendors” means persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizings storing, or retrieving data in any form or medium) and their employees and subcontractors.
(m) “Protected Material” means any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.”
(n) “Receiving Party” means a Party' that receives Disclosure or Discovery Material from a Producing Party'.
3. SCOPE
The protections conferred by this Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party' or becomes part of the public domain after its disclosure to a Receiving Party' as a result of pubheation not invoking a violation of this Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the Receiving Party' prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
4. DURATION
Even after final disposition of tins litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law.
5. DESIGNATING PROTECTED MATERIAL
(a) Exercise of Restraint and Care in Designating Material for Protection. Each
Party' or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is practical to do so, the Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify - so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order.
If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection at all or do not qualify' for the level of protection initially asserted) that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation.
(b) Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5(b)(1) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(i) for information in documentary' form (e.g, paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party' affix the legend “CON F1DENTTAL” to each page that contains protected material.
A Party or Non-Party' that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. After the inspecting Party has identified the documents it wants copied and produced, the Producing Party' must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the appropriate legend ("‘CONFIDENTIAL”) to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings m the margins) and must specify, for each portion, the level of protection being asserted.
(ii) for testimony given m deposition or m other pretrial or trial proceedings, that the Designating Party' identify on the record, before the close of the deposition, hearing, or other proceeding, all protected testimony. When it is impractical to identify separately each portion of testimony' that is entitled to protection and it appears that substantial portions of the testimony may qualify for protection, the Designating Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to have up to 30 days to identify the specific portions of the testimony as to which protection is sought and to specify' the level of protection being asserted. Only those portions of the testimony that are appropriately designated for protection within the 30 days shall be covered by the provisions of this Order. Alternatively, a Designating Party may specify', at the deposition or up to 30 days afterwards if that period is properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL
The use of a document as an exhibit at a deposition shall not in any way affect its designation as Protected Material.
Transcripts containing Protected Material shall have an obvious legend on the title page that the transcript contains Protected Material, and the title page shall be followed by a list of all pages (including line numbers as appropriate) that have been designated as Protected Material and the level of protection being asserted by the Designating Party. The Designating Party' shah inform the court reporter of these requirements. Any transcript that is prepared before the expiration of a 30-day period for designation shall be treated during that period as if it had been designated “CONFIDENTIAL” m its entirety' unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as actually designated.
(iii) for information produced in some form other than documentary and for any other tangible items, that the Producing Party' affix in a prominent place on the exterior of the container or containers m which the information or item is stored the legend “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, the Producing Party', to the extent practicable, shall identify' the protected portion(s) and specify the level of protection being asserted.
(c) Additional Limitations. Any Party who requests additional limits on disclosure beyond those limits imposed on material designated “CONF1DENTIAL” (such as “Attorneys' Eyes Only" m 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 the Local Civil Rules and the Individual Practice Rules of the Judge with whom the dispute is raised.
(d) Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. Upon timely correction of a designation, the Receiving Party' must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order.
6. CHALLENGING CONFIDENTIALITY DESIGN ATIONS
(a) Timing of Challenges. Airy Party or Non-Party may challenge a designation of confidentiality' at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary' economic burdens, or a significant disruption or delay of the litigation, a Party' does not waive its right to challenge a confidentiality' designation by electing not to mount a challenge promptly after the original designation is disclosed.
format reproducing or capturing any of the Protected Material. Notwithstanding this provision. Counsel are entitled to retain an archival copy of all pleadings, motion papers, tn al. deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Order
(b) Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly within 14 days of the date of service of notice. In conferring, the Challenging Party' must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party five (5) busmess days to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party' may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party' is unwilling to participate in the meet and confer process m a timely manner.
(c) Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, the Challenging Party' shall file and save a motion to remove confidentiality within 14 days of the Designating Party's indication that it will not remove the “CONFIDENTIAL” designation, hi addition, the Challenging Party may file a motion challenging a confidentiality designation at any time if there is good cause for doing so, including a challenge to the designation of a deposition transcript or any portions thereof.
The burden of persuasion m any such challenge proceeding shall be on the Designating Party'. Unless the Designating Party' has waived the confidentiality' designation by failing to object to a motion to remove confidentiality' as described above, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party''s designation until the court rules on the challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
(a) Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party' or by a Non-Party' in connection with this case only' for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the litigation has been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order.
(b) Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to:
(i) the following individuals if disclosure to these individuals is reasonably necessary for this litigation: the Receiving Party's Outside Counsel of Record in tins action, as well as employees and Professional Vendors of said Outside Counsel of Record, the court and its personnel, including court reporters and their staff, and professional jury or trial consultants;
(ii) the Plaintiff m this action so long as she has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(in) the Defendant in tins action, including its partners, officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation, so long as they have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(iv) Experts (as defined m this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(v) during then depositions, witnesses in the action to whom disclosure is reasonably necessary. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Order.
(vi) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew" the information.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
If a Party' is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as "CONFIDENTIAL" that Party" must:
(a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order as well as airy protective order in any other litigation governing the production of material in that case;
(b) promptly notify m writing the party' who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Order, and
(c) reasonably cooperate with the Designating Party' in any actions taken to ensure the confidentially of Protected Material.
as set forth m Section 4 (DURATION).
If the Designating Party" timely seeks a protective order, the Party' served with the subpoena or court order shall not produce any information designated in this action as "CONFIDENTIAL" before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party's permission. The Designating Party' shall bear the burden and expense of seeking protection in that court of its confidential material - and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a subpoena or a lawful directive from any court.
9. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUC ED EX THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non Party' in this action and designated as “CONFIDENTIAL.” Such information produced by Non Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b) The terms of this Order are also applicable to information produced by a Party' that the Party has a good faith basis to believe should be designated as “CONFIDENTIAL” to protect information of a Non-Party. Thus, a Party' may designate material as “CONFIDENTIAL” to protect confidential information of a Non-Party'.
10. INAUTHORIZED DISCLOSURE OF PROTECTED A LUTE RIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or m any circumstance not authorized under this Order, the Receiving Party must immediately (a) notify m writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Older, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
11. PRIVILEGED OR OTHERWISE PROTECTED MATERIAL. The Parties agree that they do not intend to disclose in discovery any information protected under the attorney-client privilege, attorney work-product, or any other valid privilege or immunity. If a Party inadvertently produces information that is subject to a claim of attorney-chent privilege, attorney work product, or other mini unity or protection from disclosure, the Party making the claim shall promptly notify the Receiving Party of the claim and the basis for it. After being notified, the Receiving Party must immediately return or destroy the inadvertently-disclosed information and any copies or materials reflecting it that are in the Receiving Party's possession, custody, or control, and certify in writing that all such information, copies, or materials have been returned or destroyed. The inadvertent disclosures shall not constitute nor be deemed a waiver or forfeiture in whole or m part-in this or any other action-of any claim of attorney-client privilege, attorney work product, or any other applicable privilege or immunity, regardless of the circumstances of the disclosure. The Receiving Party may not sequester, use, or disclose the inadvertently-disclosed information until the claim is resolved. This includes a restriction against presenting the information to the court for a determination of the claim. However, within five (5) days after notifying the Receiving Party' of the inadvertent disclosure, the Designating Party" shall produce a privilege log with respect to the material, and the Receiving Party" may use the information contained thereon to challenge the designation. Nothing in this order overrides any attorney's ethical responsibilities to refrain from examining or disclosing materials that the attorney knows or reasonably should know to be privileged and to inform the Producing Party of the disclosure. If the Receiving Party' wishes to challenge the propriety of the asserted privileged or protection, it must make its application to the court within ten (10) days of the request by the Producing Party to return or destroy the information. However, any such application shah not rely upon in any manner or assert as a ground the fact or circumstances of the inadvertent production, nor shall it disclose the substance of the inadvertently produced material, except to the extent that information is included on a privilege log. Nothing in this Order shall limit the light of any party to request an in camera review of any inadvertently disclosed information.
12. MISCELLANEOUS
(a) Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court m the future. Nothing m this Order, nor in any Party's designation, objection, or failure to object pursuant to this Order, shall be deemed an admission as to any claim or defense interposed m this action.
(b) Right to Assert Other Objections. By stipulating to the entry of this Order, no Party' waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Order. Similarly, no Party' waives any light to object on any ground to use m evidence of any of the material covered by this Order.
(c) Filing Protected Material. Without written permission from the Designating Party' or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material.
13. FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in section 4 (DURATION), each Receiving Party must, upon request, return all Protected Material to the Producing Party or destroy such material, except to the extent retention thereof is required by regulations applicable to the Receiving Party. As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party' must, within ten (10) business days of a request to return or destroy Protected Material, submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) that (1) identifies (by category', where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD
PURSUANT TO STIPULATION, IT IS SO ORDERED.
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I__, [print or type fiill name], of__[print or type frill address], declare under penalty of perjury that I have read in its entirety' and understand the Stipulated Protective Order that was issued by the United States District Court for the Southern District of New' York onin the case of Kathryn Shiber v. Centerview' Partners LLC, Case No.: l:21-cv-03649-ER. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order, and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly' promise that I will not disclose in airy manner any information or item that is subject to this Stipulated Protective Order to any person or entity except m strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the Southern District of New York for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action.