Case 1:19-cv-11474-ALC-JLC Document 51 Filed 07/11/22 Page 1 of 12
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`UNITED STATES U.S. DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`KAREEM BROWN,
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`Plaintiff,
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`-against-
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`MONTEFIORE MEDICAL CENTER,
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`Defendant.
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`7/11/2022
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`Case No. 1:19-cv-11474 (ALC)
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`STIPULATED CONFIDENTIALITY
`AGREEMENT AND PROTECTIVE
`ORDER AND FRE 502(D) AND (E)
`CLAWBACK AGREEMENT AND
`ORDER
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`IT IS HEREBY STIPULATED AND AGREED, by and among counsel for the parties
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`as follows:
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`1.
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`This Order shall apply to any documents or information that Plaintiff Kareem
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`Brown (“Plaintiff”) and/or Montefiore Medical Center (“Montefiore” or "MMC" or "Defendant"
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`and Defendant together with Plaintiff, the “Parties”) provide during discovery in this action (the
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`“Action”) and designate as “Confidential”.
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`2.
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`Documents and information that may be designated as “Confidential” for the
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`purposes of this Action shall include but are not limited to; compensation and benefits information;
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`disciplinary and termination records; performance evaluations and all other personnel information
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`of third-parties; any information of a personal, sensitive or intimate nature regarding any
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`individual, including but not limited to, Plaintiff’s social security number, personal and
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`professional address(es) (physical and electronic), email addresses, phone numbers, tax
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`information, personnel and medical records, and the social security number, personal and
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`professional address(es) (physical and electronic), email addresses, phone numbers, tax
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`information, and personal and medical records of any other current or former Montefiore
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`employee, and information or documents that contain, reflect or pertain to personal information of
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`any past or current Montefiore employee; internal investigations undertaken by Montefiore, patient
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`information, information protected from disclosure by HIPAA, information protected from
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`disclosure by New York Public Health Law Section 2805-m, any information that may harm the
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`career or reputation of any current or former Montefiore employe e, and all communications
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`involving any of the foregoing areas (“Confidential Material”).
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`3.
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`The Parties shall act in good faith in designating documents or information
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`hereunder as Confidential Material. This Order also shall apply to Confidential Material used or
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`revealed during a deposition or in answers to interrogatories. The Parties shall address with the
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`Court at the final pretrial conference the use of Confidential Material at a hearing or trial or other
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`proceeding. It is agreed and understood by Plaintiff and Defendant that such documents and/or
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`information may contain highly confidential and/or proprietary information.
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`4.
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`All materials designated as Confidential Material shall be clearly marked
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`“Confidential” on the face of the document.
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`5.
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`In lieu of marking the originals of documents, the Parties may mark the copies that
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`are produced or exchanged.
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`6.
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`If at any time a Producing Party realizes that it should have designated as
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`Confidential some portion(s) of material that it previously produced without limitation, the
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`Producing Party may so designate such material by so apprising all prior recipients in writing.
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`Thereafter, this Court and all persons subject to this Order will treat such designated portion(s) of
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`the material as Confidential.
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`7.
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`Materials marked “Confidential” pursuant hereto and their contents shall be used
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`solely for purposes of the Action and not for any other purpose, and shall not be disseminated by
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`the Parties or their attorneys in any manner, orally or in written form, to anyone other than:
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`(a)
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`Counsel of record for the Parties, and the paralegal, clerical and secretarial
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`staffs employed by such counsel only to the extent necessary to render
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`professional services in this Action;
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`(b)
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`Counsel for the respective Parties, including in-house counsel and co-
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`counsel (and employees of said counsel who are assisting in the prosecution
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`(c)
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`(d)
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`(e)
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`or defense of this litigation);
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`Plaintiff;
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`Defendant;
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`Any court reporter present in his or her official capacity at any hearing,
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`deposition, or other proceeding in this Action;
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`(f)
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`Current employees of Montefiore who Montefiore determines have a need
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`to know the materials, but such materials will not include the personal
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`information of Plaintiff and any past or current employee of Montefiore,
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`including the social security number, personal and professional address(es)
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`(physical and electronic), email addresses unrelated to Montefiore, phone
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`numbers, tax information, and medical records;
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`(g)
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`Past and current employees of Montefiore and past and current union
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`members, employees and representatives who Montefiore or Plaintiff
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`determines may have knowledge of the underlying dispute and/or may serve
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`as witnesses in this matter, but such individuals are precluded from
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`receiving the personal information of Plaintiff and any past or current
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`employee of Montefiore, including without limitation to the social security
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`number, personal and professional address(es) (physical and electronic),
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`-3-
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`email addresses, phone numbers, tax information, and medical records,
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`unless such Confidential Material is covered by Section 7(i);
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`(h)
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`Experts and consultants retained by counsel for the Parties in connection
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`with this Action, who are assisting counsel in the prosecution or defense of
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`this Action;
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`(i)
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`Subpoenaed witnesses, witnesses noticed for deposition, and potential
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`witnesses, so long as any subpoenaed or noticed witness has been identified
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`in discovery as a person with knowledge of relevant facts.
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`8.
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`Prior to disclosure by the Parties or their attorneys of any Confidential Material to
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`any person referred to in paragraphs 7(f) through 7(i) of this Order, counsel shall provide such
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`person with a copy of this Order and that person must agree to be bound by its terms and shall sign
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`a declaration in the form annexed hereto as Exhibit A.
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`9.
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`All records containing Confidential Material provided by either party or by a third
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`party shall also be covered by this Order and be deemed “Confidential.” Both Parties are permitted
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`to designate productions from third parties as “Confidential Material.” This Order does not
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`substitute for or limit any obligation imposed on the Parties by HIPAA or by New York Public
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`Health Law, Section 2805-m.
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`10.
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`Before filing Confidential Material with this Court, or filing portions of any
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`pleadings, motions, or other papers that disclose such Confidential Material (“Confidential Court
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`Submission”), the Filing Party must notify the Party who designated same as “Confidential”
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`(“Designating Party”) that it intends to file the Confidential Court Submission and provide the
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`bates range of the documents and summary of the documents intended to be filed. If within two
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`(2) business days of such notification, the Designating Party advises the Filing Party that the
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`Confidential Court Submission must be filed under seal, the Parties must meet and confer within
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`two (2) business days about what portions should be redacted or if filing under seal is necessary.
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`If the Parties cannot agree, the Designating Party shall have the right to ask for intervention from
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`the Court within three business days from the Parties meet-and-confer to resolve any dispute about
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`the Confidential Court Submission. Alternatively, the Filing Party shall publicly file a redacted
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`copy of the Confidential Court Submission via the Electronic Case Filing System. The Filing Party
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`also shall file an unredacted copy of the Confidential Court Submission under seal with the Clerk
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`of this Court, and the Filing Party shall electronically serve this Court and electronically serve
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`opposing counsel with unredacted courtesy copies of the Confidential Court Submission. If the
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`Designating Party does not timely request that the Confidential Court Submission be filed under
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`seal, the Filing Party shall file an unredacted copy of the Confidential Court Submission via the
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`Electronic Case Filing System. No documents or information filed under seal shall be made
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`available to third parties or the public, except by further order of this Court or in accordance with
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`the terms of this Order.
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`11.
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`All Confidential Material shall be used solely for the purpose of the prosecution or
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`defense of this Action, including any appeals or retrials.
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`12.
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`The Parties may object to the designation of any document or information as
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`“Confidential” by first scheduling a meet-and-confer between the Parties, and if that fails
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`presenting a motion to the Court for an in camera inspection and/or a determination regarding
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`confidentiality within 15 days after having received it. Any documents or information that are
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`designated as Confidential Material shall be treated as such unless and until the Court rules that
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`such materials are not confidential. The burden of establishing confidentiality remains at all times
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`on the party asserting confidentiality.
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`13.
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`This Order shall not prejudice in any way the right of a party to: (a) object to the
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`production of documents or information it considers not subject to discovery; (b) seek a court
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`determination of whether particular discovery material should be produced; (c) object to the
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`introduction into evidence of any documents or information it considers inadmissible; or (d) use
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`its own documents or information, which may or may not have been designated by a party as
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`“Confidential” in any manner without consent of the opposing party or Court.
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`14.
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`The Parties and their counsel shall maintain all Confidential Material in a secure
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`manner so as to avoid disclosure of its contents.
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`15.
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`Nothing herein shall preclude the Parties from entering into a subsequent
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`agreement, executed by counsel for the Parties, to withdraw a “Confidential” designat ion in
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`connection with any motions or the trial of this Action.
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`16. Within 60 days of the final disposition of this action – including all appeals – all
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`recipients of Confidential Material must either return it – including all copies thereof – to the
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`Producing Party or destroy such material – including all copies thereof. In either event, by the 60-
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`day deadline, the recipient must certify its return or destruction by submitting a written certification
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`to the Producing Party that affirms that it has not retained any copies, abstracts, compilations,
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`summaries, or other forms of reproducing or capturing any of the Confidential Discovery Material.
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`Notwithstanding this provision, the attorneys that the Parties have specifically retained for this
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`action may retain an archival copy of all pleadings, motion papers, transcripts, expert reports, legal
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`memoranda, correspondence, or attorney work product, even if such materials contain Confidential
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`Material. Any such archival copies that contain or constitute Confidential Material remain subject
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`to this Order.
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`-6-
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`17.
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`The inadvertent, unintentional or in camera disclosure of Confidential Materials
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`shall not be deemed a waiver of any claims of confidentiality.
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`CLAWBACK PROVISION
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`The Parties hereby AGREE, and the Court hereby ORDERS, as follows:
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`18.
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`The disclosure or production of documents, data and other information
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`(“Documents”) by a party producing such Documents (the “Producing Party”) subject to a legally
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`recognized claim of privilege, including without limitation the attorney-client privilege and the
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`work-product doctrine, to a party receiving the Documents (the “Receiving Party”), shall in no
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`way constitute the voluntary disclosure of such Document.
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`19.
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`The inadvertent disclosure or production of any Document in this Action shall not
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`result in the waiver of any privilege, evidentiary protection or other protection associated with
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`such Document as to the Receiving Party or any third parties, and shall not result in any waiver,
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`including subject matter waiver, of any kind.
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`20.
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`If, during the course of this litigation, a Party determines that any Document
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`produced by another Party is or may reasonably be subject to a legally recognizable privilege or
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`evidentiary protection (“Protected Document”):
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`(a)
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`the Receiving Party shall: (i) refrain from reading the Protected Document
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`any more closely than is necessary to ascertain that it is privileged or
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`otherwise protected from disclosure; (ii) immediately notify the
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`Producing Party in writing that it has discovered Documents believed to
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`be privileged or protected; (iii) specifically identify the Protected
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`Documents by Bates number range or hash value, and, (iv) within ten (10)
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`days of discovery by the Receiving Party, return, sequester, or destroy all
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`copies of such Protected Documents, along with any notes, abstracts or
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`-7-
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`Case 1:19-cv-11474-ALC-JLC Document 51 Filed 07/11/22 Page 8 of 12
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`compilations of the content thereof. To the extent that a Protected
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`Document has been loaded into a litigation review database under the
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`control of the Receiving Party, the Receiving Party shall have all
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`electronic copies of the Protected Document extracted from the database.
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`Where such Protected Documents cannot be destroyed or separated, they
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`shall not be reviewed, disclosed, or otherwise used by the Receiving Party.
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`Notwithstanding, the Receiving Party is under no obligation to search or
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`review the Producing Party’s Documents to identify potentially privileged
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`or work product Protected Documents.
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`(b)
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`If the Producing Party intends to assert a claim of privilege or other
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`protection over Documents identified by the Receiving Party as Protected
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`Documents, the Producing Party will, within ten (10) days of receiving the
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`Receiving Party’s written notification described above, inform the
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`Receiving Party of such intention in writing and shall provide the Receiving
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`Party with a log for such Protected Documents, setting forth the basis for
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`the claim of privilege or other protection. In the event that any portion of a
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`Protected Document does not contain privileged or protected information,
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`the Producing Party shall also provide to the Receiving Party a redacted
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`copy of the document that omits the information that the Producing Party
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`believes is subject to a claim of privilege or other protection.
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`21.
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`If, during the course of this litigation, a Party determines it has produced a Protected
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`Document:
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`-8-
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`(a)
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`the Producing Party may notify the Receiving Party of such inadvertent
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`production in writing, and demand the return of such documents. Such
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`notice shall be in writing, however, it may be delivered orally on the
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`record at a deposition, promptly followed up in writing. The Producing
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`Party’s written notice will identify the Protected Document inadvertently
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`produced by bates number range the privilege or protection claimed, and
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`the basis for the assertion of the privilege or protection claimed, and shall
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`provide the Receiving Party with a log for such Protected Documents. In
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`the event that any portion of the Protected Document does not contain
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`privileged or protected information, the Producing Party shall also
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`provide to the Receiving Party a redacted copy of the Document that omits
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`the information that the Producing Party believes is subject to a claim of
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`privilege or other protection.
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`(b)
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`The Receiving Party must, within ten (10) days of receiving the Producing
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`Party’s written notification described above, return, sequester, or destroy
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`the Protected Document and any copies, along with any notes, abstracts or
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`compilations of the content thereof. To the extent that a Protected
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`Document has been loaded into a litigation review database under the
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`control of the Receiving Party, the Receiving Party shall have all electronic
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`copies of the Protected Document extracted from the database.
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`22.
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`To the extent that the information contained in a Protected Document has already
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`been used in or described in other documents generated or maintained by the Receiving Party prior
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`to the date of receipt of written notice by the Producing Party as set forth in paragraphs 17(b) and
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`18(a), then the Receiving Party shall segregate such documents until the claim has been resolved.
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`If the Receiving Party disclosed the Protected Document before being notified of its inadvertent
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`production, it must take reasonable steps to retrieve it.
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`23.
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`The Receiving Party’s return, sequestering or destruction of Protected Documents
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`as provided herein will not act as a waiver of the Requesting Party’s right to move for the
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`production of the returned, sequestered or destroyed documents on the grounds that the documents
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`are not, in fact, subject to a viable claim of privilege or protection. However, the Receiving Party
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`is prohibited and estopped from arguing that:
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`(a)
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`the disclosure or production of the Protected Documents acts as a waiver
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`of an applicable privilege or evidentiary protection;
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`the disclosure of the Protected Documents was not inadvertent;
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`the Producing Party did not take reasonable steps to prevent the disclosure
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`(b)
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`(c)
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`of the Protected Documents; or
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`(d)
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`the Producing Party failed to take reasonable or timely steps to rectify the
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`error.
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`24.
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`Either party may submit Protected Documents to the Court under seal for a
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`determination of the claim of privilege or other protection. The Producing Party shall preserve the
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`Protected Documents until such claim is resolved. The Receiving Party may not use the Protected
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`Documents for any purpose absent this Court’s Order.
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`25.
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`Upon a determination by the Court that the Protected Documents are protected by
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`the applicable privilege or evidentiary protection, and if the Protected Documents have been
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`sequestered rather than returned or destroyed by the Receiving Party, the Protected Documents
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`shall be returned or destroyed within 10 (ten) days of the Court’s order.
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`26.
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`Nothing contained herein is intended to, or shall serve to limit a Party’s right to
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`conduct a review of documents, data (including electronically stored information) and other
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`information for relevance, responsiveness and/or the segregation of privileged and/or protected
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`information before such information is produced to another Party.
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`27.
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`Once executed by all parties, the Order shall be by treated by the parties as an Order
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`of Court until it is formally approved by the Court.
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`Dated July 7, 2022
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`LITTLER MENDELSON, P.C.
`900 Third Avenue
`New York, New York 10022.4834
`(212) 583-9600
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`By: /s/
`Jean L. Schmidt
`Emily C. Haigh
`Attorneys for Defendant Montefiore Medical Center
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`STACEY GRAY P.C.
`60 East 42nd Street
`Suite 4600
`New York, NY 10165
`212-227-9163
`
`By: /s/
`Stacey M. Gray
`Attorneys for Plaintiff Kareem Brown
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`
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`SO ORDERED.
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`Dated: July 11, 2022
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` New York, New York
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`-11-
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`Case 1:19-cv-11474-ALC-JLC Document 51 Filed 07/11/22 Page 12 of 12
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`EXHIBIT A
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`UNITED STATES U.S. DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`KAREEM BROWN,
`
`Plaintiff,
`
`-against-
`
`MONTEFIORE MEDICAL CENTER,
`
`Defendant.
`
`Case No. 1:19-cv-11474 (ALC)
`
`SUBSCRIPTION AND ADHERENCE TO THE STIPULATION
`AND PROTECTIVE ORDER OF CONFIDENTIALITY
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`The undersigned hereby declares that (he)(she)(they) has read and understands the
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`Stipulation and Protective Order of Confidentiality (the “Order”) entered in the above captioned
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`proceedings and that (he)(she)(they) will adhere to and abide by all of the provisions of said Order
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`with respect to all Confidential Material (he)(she)(they) receives thereunder. By acknowledging
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`these obligations under the Protective Order, (he)(she)(they) understands that (he)(she)(they) are
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`submitting themselves to the jurisdiction of the United States District Court for the Southern
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`District of New York for the purpose of any issue or dispute arising hereunder and that my willful
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`violation of any term of the Protective Order could subject me to punishment for contempt of
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`Court.
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`Dated: _________________
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`____________________________________
`SIGNATURE
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`___________________________________
`PRINT NAME AND TITLE
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`-12-
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