STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER
ROBERT W. LEHRBURGER, Magistrate Judge.
WHEREAS, all of the parties to this action (collectively, the "Parties" and each 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 nonpublic and commercially or competitively sensitive information that they may need to disclose in connection with discovery in this action;
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds that good cause exists for issuance of an appropriately tailored confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that the Parties to this action, their respective officers, agents, servants, employees, and attorneys, any other person in active concert or participation with any of the foregoing, and all other persons with actual notice of this Order will adhere to the following terms, upon pain of contempt:
1. With respect to "Discovery Material" (i.e., information of any kind produced or disclosed in the course of discovery in this action) that a person has designated as "Confidential" pursuant to this Order, no person subject to this Order may disclose such Confidential Discovery Material to anyone else except as expressly permitted hereunder:
2. The Party or person producing or disclosing Discovery Material (each, "Producing Party") may designate as Confidential only the portion of such material that it reasonably and in good faith believes consists of:
(a) previously non-disclosed and non-public 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 non-disclosed material relating to ownership or control of any non-public company;
(c) previously non-disclosed business plans, product-development information, or marketing plans or other information the disclosure of which could cause substantial harm to a Party's business;
(d) any information of a personal or intimate nature regarding any individual; or
(e) any other category of information given confidential status by this Court after the date of this Order.
3. With respect to the Confidential portion of any Discovery Material other than deposition transcripts and exhibits, the Producing Party or its 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. A Producing Party or its counsel may designate deposition exhibits or portions of deposition transcripts as Confidential Discovery Material 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 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 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 in their possession or under their control as directed by the Producing Party or that person's counsel. During the 30-day period following a deposition, all Parties will treat the entire deposition transcript as if it had been designated Confidential.
5. If at any time before the termination of this action a Producing Party realizes that it should have designated as Confidential some portion(s) of Discovery Material that it previously produced without a Confidential designation, the Producing Party may so designate such material by notifying all Parties in writing. Thereafter, all persons subject to this Order will treat such designated portion(s) of the Discovery Material as Confidential. In addition, the Producing Party shall provide each other Party with replacement versions of such Discovery Material that bears the "Confidential" designation within two business days of providing such notice. The production of Discovery Material that is later designated as Confidential as provided herein or that otherwise is privileged or protected shall not constitute a waiver in whole or in part of the producing party's claim of confidentiality, privilege or protection. If such Discovery Material is filed with the Court before being marked Confidential or identified as privileged or protected, the party producing such material will be responsible for seeking appropriate relief from the Court.
6. Nothing contained in this Order will be construed as: (a) a waiver by a Party or person of its right to object to any discovery request; (b) a waiver of any privilege or protection; or (c) a ruling regarding the admissibility at trial of any document, testimony, or other evidence.
7. Where a Producing Party has designated Discovery Material as Confidential, other persons subject to this Order may disclose such information only to the following persons:
(a) the Parties to this action, their insurers, and counsel to their insurers;
(b) counsel retained specifically for this action, including any paralegal, clerical, or other assistant that such outside counsel employs and assigns to this matter;
(c) outside vendors or service providers (such as copy-service providers and document-management consultants) that counsel hire and assign to this matter;
(d) any mediator or arbitrator that 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 Exhibit A 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 Non-Disclosure Agreement in the form annexed as Exhibit A hereto;
(g) any person a Party retains 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 Exhibit A hereto;
(h) stenographers engaged to transcribe depositions the Parties conduct in this action; and
(i) this Court, including any appellate court, its support personnel, and court reporters.
8. Before disclosing any Confidential Discovery Material to any person referred to in subparagraphs 7(c), 7(d), 7(f), or 7(g) above, counsel must provide a copy of this Order to such person, who must sign a Non-Disclosure Agreement in the form annexed as Exhibit A hereto stating that he or she has read this Order and agrees to be bound by its terms. Said counsel must retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to opposing counsel either before such person is permitted to testify (at deposition or trial) or at the conclusion of the case, whichever comes first.
9. This Order binds the Parties and certain others to treat as Confidential any Discovery Materials so classified. The Court has not, however, made any finding regarding the confidentiality of any Discovery Materials, and retains full discretion to determine whether to afford confidential treatment to any Discovery Material designated as Confidential hereunder. All persons are placed on notice that the Court is unlikely to seal or otherwise afford confidential treatment to any Discovery Material introduced into evidence at trial, even if such material has previously been sealed or designated as Confidential.
10. In filing Confidential Discovery Material with this Court, or filing portions of any pleadings, motions, or other papers that disclose such Confidential Discovery Material ("Confidential Court Submission"), the Parties shall publicly file a redacted copy of the Confidential Court Submission via the Electronic Case Filing System. In accordance with Rule 4(A) of the Court's Individual Rules of Practice in Civil Cases, the Parties shall file an unredacted copy of the Confidential Court Submission under seal with the Clerk of this Court, and the Parties shall serve this Court and opposing counsel with unredacted courtesy copies of the Confidential Court Submission. In accordance with Rule 4(A) of this Court's Individual Rules of Practice in Civil Cases, any Party that seeks to file Confidential Discovery Material under seal must file an application and supporting declaration justifying—on a particularized basis—the sealing of such documents. The parties should be aware that the Court will unseal documents if it is unable to make "specific, on the record findings ... demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006).
11. Any Party who objects to any designation of confidentiality may at any time before the trial of this action serve upon counsel for the Producing Party a written notice stating with particularity the grounds of the objection. If the Parties cannot reach agreement promptly, counsel for all affected Parties will address their dispute to this Court in accordance with paragraph 2(C) of this Court's Individual Practices.
12. Any Party who requests additional limits on disclosure (such as "attorneys' eyes only" in extraordinary circumstances) may at any time before the trial of this action serve upon counsel for the recipient Parties a written notice stating with particularity the grounds of the request. If the Parties cannot reach agreement promptly, counsel for all affected Parties will address their dispute to this Court in accordance with Rule 2(C) of this Court's Individual Rules of Practice in Civil Cases.
13. Discovery Material, including Confidential Discovery Material under this Order, and the contents thereof shall be used solely for the prosecution and defense of this action and any appeals thereto, and not for any other purpose or in any other litigation proceeding. Nothing contained in this Order, however, will affect or restrict the rights of any Party with respect to its own documents or information produced in this action.
14. Nothing in this Order will prevent any Party 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 that such Party gives written notice to the Producing Party 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 Party will bear the burden to oppose compliance with the subpoena, other compulsory process, or other legal notice if the Producing Party deems it appropriate to do so.
15. Each person who has access to Discovery Material designated as Confidential pursuant to this Order must take all due precautions to prevent the unauthorized or inadvertent disclosure of such material.
16. Within 60 days of the final disposition of this action—including all appeals—all recipients of Confidential Discovery Material must either return it—including all copies thereof—to the Producing Party, or, upon permission of the Producing Party, destroy such material—including all copies thereof. In either event, by the 60-day deadline, the recipient must certify the return or destruction of Confidential Discovery Material by submitting a written certification to the Producing Party that affirms that it has not retained any copies, abstracts, compilations, summaries, notes, or other forms of reproducing or capturing any of the Confidential Discovery Material in whole or in part. Notwithstanding this provision, the attorneys that the Parties have specifically retained for this action may retain an archival copy of all pleadings, motion papers, transcripts, expert reports, legal memoranda, correspondence, or attorney work product, even if such materials contain Confidential Discovery Material. Any such archival copies that contain or constitute Confidential Discovery Material remain subject to this Order.
17. This Order will survive the termination of the litigation and will continue to be binding upon all persons subject to this Order to whom Confidential Discovery Material is produced or disclosed.
18. This Court will retain jurisdiction over all persons subject to this Order to the extent necessary to enforce any obligations arising hereunder or to impose sanctions for any contempt thereof.
19. This agreement may be executed by counsel in counterparts, all of which taken together shall constitute one and the same instrument, with facsimile copies or scanned copies to be accepted as originals.
SO STIPULATED AND AGREED.
________ ________
Michael Fernandez (fernandez@freehill.com) Anthony Pruzinsky (apruzinsky@hillrivkins.com)
Gina M. Venezia (venezia@freehill.coom) Gerry White (gwhite@hillrivkins.com)
Cody D. King (king@freehill.com) Jim Saville (jsaville@hillrivkins.com)
Freehill, Hogan & Mahar, LLP John Sullivan (jsullivan@hillrivkins.com)
80 Pine Street 45 Broadway, Suite 1500
New York, NY 10005 NY, NY 10006
212-425-1900 | Fax: 212-425-1901 (212) 669-0600 | Fax: (212) 669-0698
Attorneys for Hapag Lloyd Attorneys for Various Cargo Interests
Date: Feb. 14, 2020 Date: 2-7-2020
________ ________
Martin Casey (mfc@caseybarnett.com) James Krauzlis (jpk@caseybarnett.com)
Casey & Barnett, LLC Casey & Barnett, LLC
305 Broadway, Suite 1202 305 Broadway, Suite 1202
New York, NY 10007 New York, NY 10007
212-286-0225 | Fax: 212-286-0261 212-286-0225 | Fax: 212-286-0261
Attorneys for Katoen Attorneys for Hartford Fire
Date: 2/10/2020 Date: 2/10/2020
________ ________
Keith Heard (kwh@Implaw.net) Francis Montbach (FMontbach@Moundcotton.com)
Lennon, Murphy, Caulfield & Phillips, LLC Costantino Suriano (csuriano@moundcotton.com)
420 Lexington Avenue, Suite 300 Mound Cotton Wollan & Greengrass (NYC)
New York, NY 10170 One New York Plaza, 44th Floor
(212) 490.6050 Fax: (212) 490-6070 New York, NY 10004
Attorneys for Rooms to Go Attorneys Various Cargo Interests
Date: Feb. 10, 2020 Date: 2/10/20
________ ________
Rich Singleton (rsingleton@blankrome.com) Tom Belknap (tbelknap@blankrome.com)
Emma Jones (ejones@blankrome.com) Noe Hamra (NHamra@BlankRome.com)
Noe Hamra (NHamra@BlankRome.com) Blank Rome LLP (NYC)
Blank Rome LLP (NYC) 1271 Avenue of the Americas
1271 Avenue of the Americas New York, NY 10020
New York, NY 10020 (212) 885-5000 | Fax: (212) 885-5001
(212) 885-5000 | Fax: (212) 885-5001 Attorneys for Fed Ex
Attorneys for Nissin Date: 2/10/20
Date: ________
________ ________
Thomas Tisdale (ttisdale@tisdale-law.com) Peter Skoufalos (pskoufalos@browngavalas.com)
Tisdale Law Offices, LLC Brown Gavalas & Fromm LLP
200 Park Avenue, Suite 1700 555 Fifth Avenue
New York, NY 10166 New York, NY 10017
212-354-0025 | Fax: 212-869-0067 (212) 983-8500 | Fax: (212) 983-5946
Attorneys for Apex, Mid America, Rohlig & Attorneys for Eimskip
Sumisho Global, Pelorus Ocean Line Date: 02/10/2020
Date: Feb. 10, 2020
________ ________
Charles Schmidt (cschmidt@klselaw.com) Jim Sweeney (jsweeney@nicolettihornig.com)
Nathan Williams (nwilliams@klselaw.com) Carole Rouffet (crouffet@nicolettihornig.com)
Kennedy Lillis Schmidt & English Sam Coluzzi (scoluzzi@nicolettihornig.com)
75 Maiden Lane Will Fennell (wfennell@nicolettihornig.com)
New York, NY 10038 Nicoletti Hornig & Sweeney
212-430-0800 | Fax: 212-430-0810 88 Pine Street, 7th Floor
Attorneys for Various Cargo Interests New York, NY 10005
Date: 1/8/2020 212-220-3830 | Fax: 212-825-1864
Attorneys for Liberty Mutual & Zurich
Date: 2/10/20
________ ________
Mary Reilly (mreilly@hillbetts.com) Juliette McCullough (jmccullough@cwlfirm.com)
Hill, Betts & Nash, LLP (NYC) Cox Wootton Lerner Griffin & Hansen, LLP
One World Financial Center 900 Front Street, Suite 350
200 Liberty Street, 26th Floor San Francisco, CA 94111
New York, NY 10281-1003 Tel: (415) 438-4600 | Fax: (415) 439-4601
(212)-589-7553 | Fax: (212)-466-0514
Attorneys for VF Jeanswear Attorneys for VF Jeanswear
Date: 2-12-20 Date: 2/12/20
________ ________
Katie Jakola (kjakola@kirkland.com) Raymond Waid (rwaid@liskow.com)
Kirkland & Ellis LLP Liskow & Lewis
300 N. Lasalle 701 Poydras Street
Chicago, IL 60654 Suite 5000
312-862-2000 New Orleans, LA 70139
Attorneys for MGF Sourcing Attorneys for MGF Sourcing
Date: 2/12/20 Date: 2/10/2020
________
Rodney Q. Fonda (RFonda@nicollblack.com)
Nicoll Black & Feig, PLLC
1325 4th Ave, Ste 1650
Seattle, WA 98101
206-838-7555
Attorney for Nike, Inc.
Date: 2/10/2020
IT IS SO ORDERED.
Exhibit A to Stipulated Confidentiality Agreement and Protective Order
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
IN THE MATTER OF THE COMPLAINT OF
HAPAG-LLOYD AKTIENGESELLSCHAFT 1:19-cv-05731-GHW
a/k/a HAPAG-LLOYD AG
NON-DISCLOSURE
AS OWNERS AND OPERATORS OF THE AGREEMENT
M/V YANTIAN EXPRESS.
I, ____________________________________________________, acknowledge that I have read and understand the Protective Order in this action governing the non-disclosure of those portions of Discovery Material that have been designated as Confidential. I agree that I will not disclose such Confidential Discovery Material to anyone other than for purposes of this litigation and that at the conclusion of the litigation I will return all discovery information to the Party or attorney from whom I received it. By acknowledging these obligations under the Protective Order, I understand that I am submitting myself to the jurisdiction of the United States District Court for the Southern District of New York for the purpose of any issue or dispute arising hereunder and that my willful violation of any term of the Protective Order could subject me to punishment for contempt of Court.
_______________
Name:
Date:
