UNITED STATES U.S. DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ——— Ee | Case No.: 1:23-cv-05479 (JGLC) (RWL) THE REGENCY NYC, INC., | RBROTECTIVE ORDER Plaintiff, -against- BARBARA ATKINSON and WORTH HIGGINS & | ASSOCIATES, INC., Defendants, The Court enters the following Protective Order governing the disclosure of confidential Discovery Material by a Producing Party to a Receiving Party in this Action. 1) Definitions. As used in this Order: a. Action refers to the above-captioned litigation. b. Discovery Material includes all information exchanged between the parties, whether gathered through informal requests or communications between the parties or their counsel or gathered through formal discovery conducted pursuant to Rules 30 through 36, and Rule 45. Discovery Material includes information within documents, depositions, deposition exhibits, and other written, recorded, computerized, electronic or graphic matter, copies, and excerpts or summaries of documents disclosed as required under Rule 26(a). c. A Producing Party is a party to this litigation, or a non-party either acting on a party’s behalf or responding to discovery pursuant to a Rule 45 subpoena, which produces Discovery Material in this Action. d. A Receiving Party is a party to this litigation that receives Discovery Material from a Producing Party in this Action. 2) Confidential Discovery Material. This Protective Order applies to all confidential Discovery Material produced or obtained in this case. For the purposes of this Protective Order, confidential Discovery Material shall include: a. Commercial information relating to any party’s business including, but not limited to, tax data, financial information, financial or business plans or projections, proposed strategic transactions or other business combinations, internal audit practices, procedures, and outcomes, trade secrets or other commercially sensitive business or technical information, proprietary business and marketing plans and strategies, studies or analyses by internal or outside experts, competitive analyses, customer or prospective customer lists and information,
profit/loss information, product or service pricing or billing agreements or guidelines, and/or confidential project-related information; b, Personnel data of the parties or their employees, including but not limited to employment application information; the identity of and information received from employment references; wage and income information; benefits information; employee evaluations; medical evaluation and treatment information and records; counseling or mental health records, educational records; and employment counseling, discipline, or performance improvement documentation; c. Information concerning settlement discussions and mediation, including demands or offers, arising from a dispute between a party anda non-party; d, Medical or mental health information; e. Records restricted or prohibited from disclosure by statute; and f. Any information copied or extracted from the previously described materials, including all excerpts, summaries, or compilations of this information or testimony, and documentation of questioning, statements, conversations, or presentations that might reveal the information contained within the underlying confidential Discovery Material. 3} Manner of Confidential Designation. A Producing Party shall affix a “CONFIDENTIAL” designation to any confidential Discovery Material produced in this Action. a. As to documentary information (defined to include paper or electronic documents, but not transcripts of depositions or other pretrial or trial proceedings), the Producing Party must affix the legend “CONFIDENTIAL” to each page that contains protected material. b. If only a portion or portions of the information on a document page qualifies for protection, the Producing Party must clearly identify the protected portion(s) (e.g., by using highlighting, underlining, or appropriate markings in the margins). c. If it is not feasible to label confidential Discovery Material as “CONFIDENTIAL,” the Producing Party shall indicate via cover letter or otherwise at the time of production that the material being produced is CONFIDENTIAL.
4) Timing of Confidential Designation. a. Except as otherwise stipulated or ordered, or where discovery is made available for inspection before it is formally disclosed, Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. b. If the Producing Party responds to discovery by making Discovery Material available for inspection, the Producing Party need not affix confidential designations until after the Receiving Party has selected the material it wants to receive. During the inspection and before the designation, all material made available for inspection is deemed “CONFIDENTIAL.” After the Receiving Party has identified the Discovery Material it wants produced, the Producing Party must determine which materials, or portions thereof, qualify for protection under this Order, and designate the materials as “CONFIDENTIAL” as required under this order. 5) Qualified Recipients. For the purposes of this Protective Order, the persons authorized to receive confidential Discovery Material (hereinafter “Qualified Recipient”) are: a. The Parties, including any members, officers, board members, directors, employees, or other legal representatives of the parties. b. Legal counsel representing the parties, and members of the paralegal, secretarial, or clerical staff who are employed by, retained by, or assisting such counsel; including vendors who are retained to copy documents or electronic files, provide technical, litigation support, or mock trial services, or provide messenger or other administrative support services. c. Any non-expert witness during any deposition or other proceeding in this Action, and counsel for that witness. d. Potential witnesses and their counsel, but only to the extent reasonably related to the anticipated subject matter of the potential witness’s deposition, trial, or hearing testimony for this Action, so long as such persons agree to maintain the confidential Discovery Material in confidence per the terms of this Order, and provided that such persons may only be shown copies of confidential Discovery Material and may not retain any such material. e. Consulting or testifying expert witnesses who will be providing professional opinions or assistance for this Action based upon a review of the CONFIDENTIAL information, and the staff and assistants employed by the consulting or testifying experts.
f. Any mediator or arbitrator retained by the parties to assist with resolving and/or settling the claims of this Action and members of the arbitrator’s or mediator’s staff and assistants. g. The parties’ insurers for this Action, and their staff and assistants, members, officers, board members, directors or other legal representatives. h. Court reporters for depositions taken in this Action, including persons operating video recording equipment and persons preparing transcripts of testimony. i. The Court and its staff, any court reporter or typist recording or transcribing hearings and testimony, and jurors; and □□ Any auditor or regulator of a party is entitled to review the confidential Discovery Material due to contractual rights or obligations, or federal or state laws, or court orders, but solely for such contractual or legal purposes. 6) Dissemination by the Receiving Party. Counsel for the Receiving Party shall: a. Require Qualified Recipients who are non-expert witnesses or expert witnesses and consultants and who receive information designated as “CONFIDENTIAL” to review and agree to the terms of this Protective Order and execute a copy of the Agreement attached hereto as Appendix A before receiving confidential Discovery Material. b.
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UNITED STATES U.S. DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ——— Ee | Case No.: 1:23-cv-05479 (JGLC) (RWL) THE REGENCY NYC, INC., | RBROTECTIVE ORDER Plaintiff, -against- BARBARA ATKINSON and WORTH HIGGINS & | ASSOCIATES, INC., Defendants, The Court enters the following Protective Order governing the disclosure of confidential Discovery Material by a Producing Party to a Receiving Party in this Action. 1) Definitions. As used in this Order: a. Action refers to the above-captioned litigation. b. Discovery Material includes all information exchanged between the parties, whether gathered through informal requests or communications between the parties or their counsel or gathered through formal discovery conducted pursuant to Rules 30 through 36, and Rule 45. Discovery Material includes information within documents, depositions, deposition exhibits, and other written, recorded, computerized, electronic or graphic matter, copies, and excerpts or summaries of documents disclosed as required under Rule 26(a). c. A Producing Party is a party to this litigation, or a non-party either acting on a party’s behalf or responding to discovery pursuant to a Rule 45 subpoena, which produces Discovery Material in this Action. d. A Receiving Party is a party to this litigation that receives Discovery Material from a Producing Party in this Action. 2) Confidential Discovery Material. This Protective Order applies to all confidential Discovery Material produced or obtained in this case. For the purposes of this Protective Order, confidential Discovery Material shall include: a. Commercial information relating to any party’s business including, but not limited to, tax data, financial information, financial or business plans or projections, proposed strategic transactions or other business combinations, internal audit practices, procedures, and outcomes, trade secrets or other commercially sensitive business or technical information, proprietary business and marketing plans and strategies, studies or analyses by internal or outside experts, competitive analyses, customer or prospective customer lists and information,
profit/loss information, product or service pricing or billing agreements or guidelines, and/or confidential project-related information; b, Personnel data of the parties or their employees, including but not limited to employment application information; the identity of and information received from employment references; wage and income information; benefits information; employee evaluations; medical evaluation and treatment information and records; counseling or mental health records, educational records; and employment counseling, discipline, or performance improvement documentation; c. Information concerning settlement discussions and mediation, including demands or offers, arising from a dispute between a party anda non-party; d, Medical or mental health information; e. Records restricted or prohibited from disclosure by statute; and f. Any information copied or extracted from the previously described materials, including all excerpts, summaries, or compilations of this information or testimony, and documentation of questioning, statements, conversations, or presentations that might reveal the information contained within the underlying confidential Discovery Material. 3} Manner of Confidential Designation. A Producing Party shall affix a “CONFIDENTIAL” designation to any confidential Discovery Material produced in this Action. a. As to documentary information (defined to include paper or electronic documents, but not transcripts of depositions or other pretrial or trial proceedings), the Producing Party must affix the legend “CONFIDENTIAL” to each page that contains protected material. b. If only a portion or portions of the information on a document page qualifies for protection, the Producing Party must clearly identify the protected portion(s) (e.g., by using highlighting, underlining, or appropriate markings in the margins). c. If it is not feasible to label confidential Discovery Material as “CONFIDENTIAL,” the Producing Party shall indicate via cover letter or otherwise at the time of production that the material being produced is CONFIDENTIAL.
4) Timing of Confidential Designation. a. Except as otherwise stipulated or ordered, or where discovery is made available for inspection before it is formally disclosed, Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. b. If the Producing Party responds to discovery by making Discovery Material available for inspection, the Producing Party need not affix confidential designations until after the Receiving Party has selected the material it wants to receive. During the inspection and before the designation, all material made available for inspection is deemed “CONFIDENTIAL.” After the Receiving Party has identified the Discovery Material it wants produced, the Producing Party must determine which materials, or portions thereof, qualify for protection under this Order, and designate the materials as “CONFIDENTIAL” as required under this order. 5) Qualified Recipients. For the purposes of this Protective Order, the persons authorized to receive confidential Discovery Material (hereinafter “Qualified Recipient”) are: a. The Parties, including any members, officers, board members, directors, employees, or other legal representatives of the parties. b. Legal counsel representing the parties, and members of the paralegal, secretarial, or clerical staff who are employed by, retained by, or assisting such counsel; including vendors who are retained to copy documents or electronic files, provide technical, litigation support, or mock trial services, or provide messenger or other administrative support services. c. Any non-expert witness during any deposition or other proceeding in this Action, and counsel for that witness. d. Potential witnesses and their counsel, but only to the extent reasonably related to the anticipated subject matter of the potential witness’s deposition, trial, or hearing testimony for this Action, so long as such persons agree to maintain the confidential Discovery Material in confidence per the terms of this Order, and provided that such persons may only be shown copies of confidential Discovery Material and may not retain any such material. e. Consulting or testifying expert witnesses who will be providing professional opinions or assistance for this Action based upon a review of the CONFIDENTIAL information, and the staff and assistants employed by the consulting or testifying experts.
f. Any mediator or arbitrator retained by the parties to assist with resolving and/or settling the claims of this Action and members of the arbitrator’s or mediator’s staff and assistants. g. The parties’ insurers for this Action, and their staff and assistants, members, officers, board members, directors or other legal representatives. h. Court reporters for depositions taken in this Action, including persons operating video recording equipment and persons preparing transcripts of testimony. i. The Court and its staff, any court reporter or typist recording or transcribing hearings and testimony, and jurors; and □□ Any auditor or regulator of a party is entitled to review the confidential Discovery Material due to contractual rights or obligations, or federal or state laws, or court orders, but solely for such contractual or legal purposes. 6) Dissemination by the Receiving Party. Counsel for the Receiving Party shall: a. Require Qualified Recipients who are non-expert witnesses or expert witnesses and consultants and who receive information designated as “CONFIDENTIAL” to review and agree to the terms of this Protective Order and execute a copy of the Agreement attached hereto as Appendix A before receiving confidential Discovery Material. b. Instruct witnesses, consultants, and outside counsel who assist with case preparation or represent a witness that disclosure of the information designated as “CONFIDENTIAL” is prohibited as set forth herein. c, Maintain a list of any confidential Discovery Material disclosed to persons who are required to execute copies of the Appendix A Agreement, along with the executed copies of the Appendix A Agreement. The prohibition on disclosing information designated as “CONFIDENTIAL” exists and is enforceable by the Court even if the person receiving the information fails or refuses to sign the Appendix A Agreement. 7) Duty as to Designations. Each Producing Party that designates information or items as CONFIDENTIAL must exercise reasonable care to limit any such designation to specific material that qualifies under the appropriate standards, and designate 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. Broadly described, indiscriminate, or routinized designations are prohibited.
8) Limitations on Use, Confidential Discovery Material shall be used by the Receiving Party only in connection with the pending action and not for any business or other purpose whatsoever. 9) Maintaining Confidentiality. Discovery Material designated as “CONFIDENTIAL” shall be held in confidence by each Qualified Recipient to whom it is disclosed, shall be used only for purposes of this action, and shall not be disclosed to any person who is not a Qualified Recipient. Each party, each Qualified Recipient, and all counsel representing any party, shall use their best efforts to maintain all information designated as “CONFIDENTIAL” in such a manner as to prevent access, even at a hearing or trial, by individuals who are not Qualified Recipients. Nothing herein prevents disclosure beyond the terms of this Protective Order if the party claiming confidentiality consents in writing to such disclosure. 10) Copies. Discovery Material designated as “CONFIDENTIAL” shall not be copied or otherwise reproduced by the Receiving Party, except for transmission to Qualified Recipients, without the written permission of the Producing Party or, in the alternative, by order of the Court. However, nothing herein shall restrict a Qualified Recipient from loading confidential documents into document review platforms or programs for the purposes of case or trial preparation or making working copies, abstracts, digests, and analyses of information designated as “CONFIDENTIAL” under the terms of this Protective Order. 1!) Decket Filings. All documents of any nature including, but not limited to, briefs, motions, memoranda, transcripts, discovery responses, evidence, and the like that are filed with the Court for any purpose and that contain Discovery Material designated as “CONFIDENTIAL” shali be provisionally filed under seal with the filing party’s motion for leave to file under seal. A party seeking to file Discovery Material under seal must comply with the Court’s rules and electronic docketing procedures for filing such motions. Nothing in this agreement shall constrain the Court’s ability to restrict or permit public access to documents filed on the docket or alter the standards under which public access to documents is to be determined. See Lugosch v, Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). 12) Challenges to Confidentiality Designations. A Receiving Party that questions the Producing Party’s confidentiality designation will, as an initial step, contact the Producing Party and confer in good faith to resolve the dispute. If the parties are unable to resolve the dispute without court intervention, they shall write to the Court a letter not exceeding five pages in length, exclusive of attachments. A response not exceeding five pages in length, exclusive of attachments, must be served and filed within four days of receipt of the letter, unless a motion for additional time is granted. The party that produced the information designated as “CONFIDENTIAL” bears the burden of proving it was properly designated. The party challenging a “CONFIDENTIAL” designation must obtain a court order before disseminating the information to anyone other than Qualified Recipients. 13) Use at Court Hearings and Trial. Subject to the Federal Rules of Evidence, Discovery Material designated as “CONFIDENTIAL” may be offered and received into evidence at trial or at any hearing or oral argument. A party agreeing to the entry of this order does not
thereby waive the right to object to the admissibility of the material in any proceeding, including trial. Any party may move the Court for an order that Discovery Material designated as “CONFIDENTIAL” be reviewed in camera or under other conditions to prevent unnecessary disclosure. Return or Destruction of Documents. Upon final termination of this Action, including all appeals, each party shail make reasonable efforts to destroy all Discovery Material designated as “CONFIDENTIAL.” The destroying party shall notify the producing party when destruction under this provision is complete. If a party is unable to destroy all Discovery Material designated as “CONFIDENTIAL,” that material shall be returned to the Producing Party or the Producing Party’s counsel. This Protective Order shall survive the final termination of this action, and it shall be binding on the parties and their legal counsel in the future. 15) Modification. This Protective Order is entered without prejudice to the right of any party to ask the Court to order additional protective provisions, or to modify, relax or rescind any restrictions imposed by this Protective Order when convenience or necessity requires. Disclosure other than as provided for herein shall require the prior written consent of the Producing Party, or a supplemental Protective Order of the Court. 16) Additional Parties to Litigation. In the event additional parties are joined in this action, they shall not have access to Discovery Material as “CONFIDENTIAL” until the newly joined party, by its counsel, has executed and, at the request of any party, filed with the Court, its agreement to be fully bound by this Protective Order. 17) Inadvertent Disclosure of Protected Discovery Material. a. A Producing Party that inadvertently fails to properly designate Discovery Material as “CONFIDENTIAL” shall have 14 days from discovering the oversight to correct that failure. Such failure shall be corrected by providing written notice of the error to every Receiving Party. b. Any Receiving Party notified that confidential Discovery Material was received without the appropriate confidentiality designation as authorized under this order shall make reasonable efforts to retrieve any such documents distributed to persons who are not Qualified Recipients under this order, and as to Qualified Recipients, shall exchange the undesignated or improperly designated documents with documents that include the correct “CONFIDENTIAL” designation. The inadvertent, unintentional or in camera disclosure of Confidential Materials shall not be deemed a waiver of any claims of confidentiality. 18) Clawback Provision. The Parties hereby AGREE, and the Court hereby ORDERS, as follows:
a. The disclosure or production of documents, data and other information (“Documents”) by a party producing such Documents (the “Producing Party”) subject to a legally recognized claim of privilege, including without limitation the attorney- client privilege and the work-product doctrine, to a party receiving the Documents (the “Receiving Party”), shall in no way constitute the voluntary disclosure of such Document. b. The inadvertent disclosure or production of any Document in this Action shall not result in the waiver of any privilege, evidentiary protection or other protection associated with such Document as to the Receiving Party or any third parties, and shall not result in any waiver, including subject matter waiver, of any kind. Cc. If, during the course of this litigation, a Party determines that any Document produced by another Party is or may reasonably be subject to a legally recognizable privilege or evidentiary protection (“Protected Document”): (a) the Receiving Party shall: (i) refrain from reading the Protected Document any more closely than is necessary to ascertain that it is privileged or otherwise protected from disclosure; (ii) immediately notify the Producing Party in writing that it has discovered Documents believed to be privileged or protected; (iii) specifically identify the Protected Documents by Bates number range or hash value, and, (iv) within ten (10) days of discovery by the Receiving Party, return, sequester, or destroy all copies of such Protected Documents, along with any notes, abstracts or compilations of the content thereof. To the extent that a Protected Document has been loaded into a litigation review database under the contro! of the Receiving Party, the Receiving Party shall have all electronic copies of the Protected Document extracted from the database. Where such Protected Documents cannot be destroyed or separated, they shall not be reviewed, disclosed, or otherwise used by the Receiving Party. Notwithstanding, the Receiving Party is under no obligation to search or review the Producing Party’s Documents to identify potentially privileged or work product Protected Documents. (b) if the Producing Party intends to assert a claim of privilege or other protection over Documents identified by the Receiving Party as Protected Documents, the Producing Party will, within ten (10) days of receiving the Receiving Party’s written notification described above, inform the Receiving Party of such intention in writing and shall provide the Receiving Party with a log for such Protected Documents, setting forth the basis for the claim of privilege or other protection. In the event that any portion of a Protected Document does not contain privileged or protected information, the Producing Party shall also provide to the Receiving Party a redacted copy of the document that omits the information that the Producing Party believes is subject to a claim of privilege or other protection. d. If, during the course of this litigation, a Party determines it has produced a Protected Document:
(a) the Producing Party may notify the Receiving Party of such inadvertent production in writing and demand the return of such documents. Such notice shall be in writing; however, it may be delivered orally on the record at a deposition, promptly followed up in writing. The Producing Party’s written notice will identify the Protected Document inadvertently produced by bates number range the privilege or protection claimed, and the basis for the assertion of the privilege or protection claimed and shall provide the Receiving Party with a log for such Protected Documents. In the event that any portion of the Protected Document does not contain privileged or protected information, the Producing Party shall also provide to the Receiving Party a redacted copy of the Document that omits the information that the Producing Party believes is subject to a claim of privilege or other protection. (b) The Receiving Party must, within ten (10) days of receiving the Producing Party’s written notification described above, return, sequester, or destroy the Protected Document and any copies, along with any notes, abstracts or compilations of the content thereof. To the extent that a Protected Document has been loaded into a litigation review database under the control of the Receiving Party, the Receiving Party shall have all electronic copies of the Protected Document extracted from the database. €. To the extent that the information contained in a Protected Document has already been used in or described in other documents generated or maintained by the Receiving Party prior to the date of receipt of written notice by the Producing Party as set forth in paragraphs 17a and 17b then the Receiving Party shall segregate such documents until the claim has been resolved. If the Receiving Party disclosed the Protected Document before being notified of its inadvertent production, it must take reasonable steps to retrieve it. f. The Receiving Party’s return, sequestering or destruction of Protected Documents as provided herein will not act as a waiver of the Requesting Party’s right to move to produce the returned, sequestered or destroyed documents on the grounds that the documents are not, in fact, subject to a viable claim of privilege or protection. Either party may submit Protected Documents to the Court under seal for a determination of the claim of privilege or other protection. The Producing Party shall preserve the Protected Documents until such a claim is resolved. The Receiving Party may not use the Protected Documents for any purpose absent this Court’s Order. g. Upon a determination by the Court that the Protected Documents are protected by the applicable privilege or evidentiary protection, and if the Protected Documents have been sequestered rather than returned or destroyed by the Receiving Party, the Protected Documents shall be returned or destroyed within 10 (ten) days of the Court’s order.
g. Nothing contained herein is intended to or shall serve to limit a Party’s right to conduct a review of documents, data (including electronically stored information) and other information for relevance, responsiveness and/or the segregation of privileged and/or protected information before such information is produced to another Party. h. Once executed by all parties, the Order shall be treated by the parties as an Order of Court until it is formally approved by the Court. Dated: December 5, 2023 Dated: December 5, 2023 MARZEC LAW FIRM, P.C. KANE KESSLER, P.C. /s/ Jerome Noll S. Reid Kahn Jerome Noli, Esq. S. Reid Kahn, Esq. Attorneys for Plaintiff Attomeys for Defendants Manhattan Ave, Suite 104 600 Third Avenue, 35th Floor Brooklyn, NY 11222 New York, NY 10016 (718) 609-0303 (212) 519-5154 jerome.noll@marzec.myfirm. pro rkahn@kanekessler.com
SO ORDERED: oN {* Nh, C Ae a.CA \_KAARE HON, JESSICA G. L. CLARKE United States District Judge Dated: December 6, 2023 New York, New York
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ete ene enema □□ nnnee □□□□□□□□□□□□□□□□□□□□□ THE REGENCY NYC, INC., Plaintiff, Case No.: 1:23-cv-05479 (JGLC) (RWL) -against- EXHIBIT A BARBARA ATKINSON and WORTH HIGGINS & ASSOCIATES, INC., Defendants. wane ee ee eee ene □□□□□□□□□□□□□□□□□□□□□□□□□□□□ [hereby acknowledge that I am about to receive Confidential Information supplied in connection with the above-captioned case. I understand that such information is being provided to me pursuant to the terms and restrictions of the Protective Order entered in this case. I have been given a copy of the Protective Order, have read the Protective Order, and agree to be bound by its terms. I understand that Confidential Information as defined in the Protective Order, or any notes or other records that may be made regarding any such materials, shall not be disclosed to any persons except as permitted by the Protective Order.
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