Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 1 of 19
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`ATARI INTERACTIVE,INC.,
`
`Plaintiff,
`
`v.
`
`Civil Action No, 23-civ-8926
`
`CONFIDENTIALITY STIPULATION
`AND PROTECTIVE ORDER
`
`PRINTIFY, INC., JANIS BERDIGANS, and
`JOHN DOES I--10,
`
`Defendants.
`
`
`
`THIS MATTERis before the Court pursuant to Rule 26(c) of the Federal Rules of Civil
`
`Procedure for entry of an order, with the consent and agreement of Plaintiff Atari Interactive, Inc.
`
`and Defendants Printify, Inc. and Janis Berdigans (collectively the “Parties”; each a “Party”),
`
`governingthe disclosure and protection of the Parties’ confidential, proprietary, and trade secret
`
`information. In orderto facilitate discovery while preserving and maintaining the confidentiality
`
`of certain documents that the Parties believe will be produced in this matter, andin the interests of
`
`justice, it is hereby ORDEREDbythe Courtthat:
`
`i,
`
`This Confidentiality Stipulation and Protective Order (this “Protective Order”)
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 1 of 19
`
`shall govern the use, dissemination, and disclosure of all information, documents, or materials that
`
`are producedin this action and designated as “Confidential” or “Confidential Attorney Eyes Only.”
`
`2,
`
`This Protective Order does not alter any confidentiality obligations that any Party
`
`or non-Party may have at law orunderanother agreement,
`
`3.
`
`Any Party or non-Party that produces documentsin this action may, in good faith,
`
`designate as “Confidential” or “Confidential Attorney Eyes Only” any documents, interrogatory
`
`answers, responses to requests for admission, deposition transcripts, documents marked as exhibits
`
`
`
`
`
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 2 of 19
`
`at any deposition, electronically stored information, or other written, recorded, graphic material,
`
`or information produced ordisclosed in this litigation that the Party considers to be subject to this
`
`Protective Order(hereinafter the “Documents” or“Testimony”).
`
`4,
`
`The term “Confidential Information,” as used in this Protective Order, shail mean
`
`all Documents and Testimony, and al! information contained therein, that the Party or non-Party
`
`to this action who produces or supplies the Documentsor Testimony (hereinafter, the “Designating
`
`Party” or the “Producing Party”) reasonably believes in good faith constitutes or contains non-
`public proprietary, confidential, technical, business, financial, personal, or commercially sensitive
`
`information, or confidential information of third parties.
`
`5.
`The term “Confidential Attorney Eyes Only Information”as used in this Protective
`Order shall mean all Documents and Testimony, and all information therein, that the Producing
`Party reasonably believes in good faith that disclosure of which, other than as permitted pursuant
`to this Protective Order, will create a likelihood of harm to the business, financial, personal,
`competitive, or commercial interests of the Designating Party or a Third Party, is substantially
`likely to cause injury to the Designating Party or a Third Party, or otherwise would violate the
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 2 of 19
`
`legal rights of the Designating Party ora Third Party.
`6.
`Nothing in this Protective Ordershall limit the tight of a Party to use Documents
`or Testimony that: (a) was lawfully in its possession priorto the initiation of this action; (b) was,
`is, or becomespublic knowledge,not in violation ofthis Protective Order; (c) is acquired by the
`non-producing person from a third party who breached no legal obligation in providing the
`document(s) to the non-producing person; or (d) becomes declassified under this Protective Order,
`The Patties shall not designate information as “Confidential” or “Confidential Attorney Eyes
`
`Only”for the purpose ofinterfering with the rights of the receiving Party to conductdiscovery.
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 3 of 19
`
`Confidential Information and Confidential Attorney Eyes Only Information
`
`7.
`
`Any Producing Party may designate as “Confidential” or “Confidential Attorney
`
`Eyes Only” any such Documents or Testimony that it reasonably and in good faith believes (or
`with respect to documents received from another person, that it has been reasonably advised by
`
`such other person) constitutes or contains Confidential Information or Confidential Attorney Eyes
`Only Information under the terms of this Protective Order. Depositions may be designated as
`Confidential or Confidential Attorney Eyes Only by indicating that fact on the record at the
`
`deposition. In the event that they were notalready designated “Confidential” and/or “Confidential
`Attorney Eyes Only” in whole orin part at the deposition, all depositions shall presumptively be
`treated as Confidential Information Attorneys Eyes Only and subject to this Protective Order
`during the deposition and for a period oftwenty (20) daysafterthe final transcript ofthe completed
`deposition is prepared and received by those counsel who ordered it, At or before the end of such
`period, the Producing Party shall identify those pages of the completed transcript that Producing
`Party deems to be Confidential or Confidential Attorney Eyes Only. Nothing in this paragraph,
`however,shall preclude any witness from reviewinghis or her own deposition transcript. If, at the
`time the final transcript is received by those counsel who ordered it, a hearing is scheduled less
`than twenty (20) days after a deposition, then the twenty-day period referenced in this paragraph
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 3 of 19
`
`shall be reduced to a seven-day (7 day) period.
`
`8.
`Counselfor the Producing Party shall have the right to exclude from oral deposition
`any person not authorized by this Order to receive information designated as Confidential or
`Confidential Attorneys Eyes Only, but such right of exclusion shall be applicable only during
`periods of examination or testimony directed to or comprising Confidential or Confidential
`Attorneys Eyes Only information. The failure of such other persons to comply with a request of
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 4 of 19
`
`this type shall constitute justification for counsel to advise the witness that he or she need not
`
`answer the question until all present in the room are authorized to receive the information
`
`contained in the testimony.
`
`9.
`
`Where reasonably practicable, the designation of Documents or Testimony as
`
`Confidential or Confidential Attorney Eyes Only for purposes of this Protective Order shall be
`
`made by marking every such page “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY
`EYES ONLY.” Such markings should not obliterate or obscure the content of the material that is
`
`produced, Where marking every page of such material is not reasonably practicable, such as with
`certain native file documents, a Producing Party may designate material as Confidential or
`
`Confidential Attorney Eyes Only by informing any receiving Party in writing in a clear and
`
`conspicuous mannerat the time of production of such materia! that such material is designated as
`Confidential or Confidential Attorney Eyes Only. Fortestimony, each court reporter participating
`in any such deposition or testimony shall be provided with a copy of this Protective Order and
`shall adhere to its provisions. Each court reporter shall mark those portions (including exhibits)
`of such deposition or testimony transcript(s) (and where the deposition is videotaped,the relevant
`portions ofthe recording) with the legend “CONFIDENTIAL OR CONFIDENTIAL ATTORNEY
`EYES ONLY — DESIGNATED BY COUNSEL,” and shall place on the cover of any such
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 4 of 19
`
`transcript(s) and recording(s) the following legend:
`
`THIS TRANSCRIPT CONTAINS MATERIALS WHICH ARE
`CLAIMED TO BE CONFIDENTIAL AND/OR CONFIDENTIAL
`ATTORNEY EYES ONLY AND COVERED BY A STIPULATED
`PROTECTIVE ORDER.
`
`10.
`
`Confidential Information, and any and all information contained therein, shall be
`
`given, shown, madeavailable, or communicated only to the following:
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 5 of 19
`
`a. The Court and its personnel in any judicial proceeding that may result
`from this action;
`
`b, The Parties’ counsel and employces of such counsel assigned to and
`reasonably necessary to assist such counselin this action,
`
`c. The named Parties, including any employees of the Parties to whom
`disclosure is reasonably necessary for the purpose of prosecuting,
`defending,orsettling this action;
`
`d. Any consultant, investigator, or expert (collectively, “Expert”) who is
`retained by a Party as an Expert for the purpose of prosecuting or
`defending this action, and who has signed a Declaration in the form
`provided as Exhibit A;
`
`¢. Any person whois the author, addressee, orrecipient of the document,
`or in the case of meeting minutes, an attendee of the meeting, or any
`other person who would havelikely reviewed such documentduring his
`or her employmentas a result of the substantive nature of his or her
`employmentposition (unless the person indicates that he or she did not
`have access to the document),
`
`f. Deposition witnesses during the course of their deposition testimony;
`
`g. For purposes of witness preparation,a deponent who was noticed for a
`deposition or a witness who is on a witness list for hearing ortrial, in
`preparation for their noticed deposition, hearing, or trial
`testimony
`where such Confidential Information is determined by counsel in good
`faith to be necessary to the anticipated subject matter of testimony,
`provided, however, that such Confidential! Information can be shared
`with such person only in connection with preparation for the anticipated
`testimony, and the persons identified in this paragraph will not be
`permitted to retain copies of such Confidential Information and shall be
`required to sign a Declaration in the form provided as Exhibit A;
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 5 of 19
`
`h. Court reporters, stenographers, or videographers who transcribe or
`record testimony in connection with this action;
`
`i. Outside photocopying, graphic production services,or litigation support
`services (c.g., e-discovery vendors/contract review attorneys, trial/jury
`consultants), as reasonably necessary for use in connection with this
`action, and who have signed a Declaration in the form provided as
`Exhibit A;
`
`j. Mediators, arbitrators, or discovery masters retained by the Parties or
`assigned by this Court; and
`
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 6 of 19
`
`k. Any other person or entity to whom the Producing Party agrees,
`writing, to allow access.
`
`in
`
`11.
`
`Unless or until the Parties or the Court determines how Confidential Attorney Eyes
`
`Only Information shall be used in this action, such Confidential Attorney Eyes Only Information
`and anyall information contained therein shall be given, shown, madeavailable, or communicated
`
`only to the following:
`
`a, The Court andits personnel in any judicial proceeding that may result
`from this action;
`
`b. The Parties’ counsel and employees of such counsel assigned to and
`reasonably necessary to assist such counselin this action;
`
`c. Any Expert whois retained by a Party as an Expert for the purpose of
`prosecuting or defending this action, and who has signed a Declaration
`in the form provided as Exhibit A;
`
`d. A deponent, prior to or in the course of a deposition in this action,if it
`appearsthat the deponent authored orreceived a copy of it, was involved
`in the subject matter described therein,oris employed by the Party who
`produced the information, document, or thing, or if the Producing Party
`consents to such disclosure, provided that such persons may be shown
`copies of designated material only during the course of preparation for
`or in the actual course of their deposition in this action, may not retain
`any designated material, and must be informed ofthe confidential nature
`of the materials;
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 6 of 19
`
`e. Any person indicated on the face of a documentor accompanying cover
`letter, email, or other communication to the author, addressee, or an
`actual recipient of the document, or, in the case of meeting minutes, an
`attendec of the meeting;
`
`f. Court reporters, stenographers, or videographers who transcribe or
`record testimony in connection with this action,
`
`g. Mediators, arbitrators, or discovery masters retained by the Parties or
`assigned by this Court; and
`
`h. Outside photocopying, graphic production services,orlitigation support
`services (¢.g., e-discovery vendors/contract review attorneys, trial/jury
`consultants), as reasonably necessary for use in connection with this
`
`6
`
`
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 7 of 19
`
`action, and who have signed a Declaration in the form provided as
`Exhibit A.
`
`12.
`
`If a Party wishes to disclose Confidential Information or Confidential Attorney
`
`Eyes Only Information to any person not described in paragraphs 9 or 10 of this Protective Order
`
`because outside counsel for the Party has determined,
`
`in good faith,
`
`that such disclosure is
`
`necessary for the prosecution ordefense ofthis action, permission to so disclose must be requested
`
`from the Designating Party in writing.
`
`If, within five (5) business days of the request for
`
`permission, the Designating Party objects in writing to the proposed disclosure, such disclosure
`
`shal} not be made unless, upon motion by the Party requesting such permission, this Court orders
`
`otherwise.
`
`13.
`
`Counsel for the Parties shall
`
`take reasonable efforts to prevent unauthorized
`
`disclosure of documents designated as Confidential or Confidential Attorney Eyes Only pursuant
`
`to the terms ofthis Protective Order. Prior to obtaining access to Confidential Information or
`
`Confidential Attorney Eyes Only Information, any person required by paragraphs 9 or 10 hereof
`
`to have signed a Declaration in the form provided as Exhibit A shall be shown and shall read a
`
`copy ofthis Protective Order and shall agree in writing to be boundby its terms by signing a copy
`
`of the Confidentiality Acknowledgment attached hereto as Exhibit A. Counsel for the Party
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 7 of 19
`
`obtaining a person’s signature on the Confidentiality Acknowledgment attached hereto as Exhibit
`A shall retain the original signed acknowledgment or a copy thereof, and, if requested by the
`
`Designating Party, shall provide a copy of the signed acknowledgment to counsel for the
`
`Designating Party,
`14.
`Where any Confidential
`
`Information or Confidential Attorney Eyes Only
`
`Information is included in any Court filing, such filing shall be filed pursuant to the Court’s
`
`practices related to filing under seal, To give the Designating Party an opportunity to justify
`
`7
`
`
`
`
`

`

`
`
` |
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 8 of 19
`
`sealing the subject information, pursuantto the Local Rules and CM/ECFPolicies and Procedures,
`
`the filing Party shall take all necessary steps to ensure that,
`
`in the first instance, any such
`
`Confidential Information, Confidential Attorney Eyes Only Information, or information derived
`
`from Confidential Information or Confidential Attorney Eyes Only Information will be filed under
`
`seal by the Court. Nothing herein shal! prevent the Parties from providing courtesy copies of
`
`pleadings, briefs, or memoranda to the Court.
`
`General Provisions
`
`15.
`
`Except to the extent expressly authorized in this Protective Order, Confidential
`
`Information and Confidential Attorney Eyes Only Information shall not be used or disclosed for
`
`any purpose other than the preparation of this case, any settlement discussions concerning this
`case, and any appeal of this case, subject to the provisions of this Protective Order. Under no
`circumstances can Confidential Information and Confidential Attorney Eyes Only Information be
`
`used in any matter, controversy, mediation, arbitration, or court action other than this action (or
`subsequentactions between the Parties ortheir affiliates arising out ofor relating to similar conduct
`
`as alleged in this action).
`16.
`Nothing in this Order shall preclude a Party from disclosing or offering into
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 8 of 19
`
`evidence at the time oftrial or during a hearing any document or information designated as
`
`Confidential Information, subject to the rules of evidence and any other Party’s objections to the
`
`admissibility or claims of confidentiality of the documentor information. Upon the request of a
`Producing Patty, the Court may take such measures, asit deems appropriate, to protect the claimed
`confidential nature of the document or information sought to be admitted and to protect the
`
`Confidential Information or Confidential Attorney Eyes Only Information from disclosure to
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 9 of 19
`
`persons other than those identified in paragraphs 9 and 10 and who have signed Exhibit A, where
`
`necessary, under this Order,
`
`17.
`
`Any summary, compilation, extract, notes, description, copy, electronic image, or
`
`database containing Confidential Information or Confidential Attorney Eyes Only Information
`
`shall be subject to the terms of this Protective Order to the same extent as the material or
`
`information from which such summary, compilation, extract, notes, description, copy, electronic
`
`image, or database is made orderived.
`
`18.
`
`The Designating Party bears the burden of establishing confidentiality. A Party
`
`shall not be obliged to challenge the propriety of a confidentiality designation at the time such
`
`designation is made, anda failure to do so shall not preclude a subsequent challenge thereto. The
`failure of any Party to challenge the designation by a Producing Party of production materials as
`
`Confidential or Confidential Attorney Eyes Only during the discovery period shall not be a waiver
`
`of that Party’s right to object. Any Party may object to the designation of a document as
`Confidential or Confidential Attorney Eyes Only by notifying the Designating Party in writing
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 9 of 19
`
`of that objection. The writing also must specify the Bates range or other identifying information
`corresponding to the beginning and end ofeach document subject to objection as well as the Bates
`tumber orother identifying information of the particular page or pages of such documents that
`actually contain the designated materials to which the objection is made. The Parties shall, within
`ten (10) business days of service of the written objection, confer concerning the objection.
`If
`the objection is not resolved,
`the objecting Party may, within twenty-one (21) days of the
`conference, but not later, attempt to resolve the dispute over the designation of the material
`in a mannerconsistent with Judge Stein’s discovery procedures.
`Information subject to such a
`dispute shall be treated consistently with the designation unless and until ordered otherwise
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 10 of 19
`
`by the Court. With respect to any material thatis re-designated or ceases to be subject to the
`
`protection of this Protective Order, the Designating Party shall, at its expense, provide to each
`
`Party which so requests additional copies thereof from which all confidentiality legends affixed
`
`hereunderhave been adjusted to reflect the re-designation or have been removed as appropriate.
`
`19.
`
`Except as otherwise provided in this Protective Order, in the event that additional
`
`persons or entities become Parties to this action, neither their outside counsel nor experts or
`
`consultants retained to assist said counsel shall have access to Confidential or Confidential
`
`Attorney Eyes Only material produced by or obtained from any other Producing Party until said
`
`party has executedand filed with the Court a copy of this Protective Order.
`
`20.
`
`The Parties agree that any non-Party from whom discovery is soughtin this action
`
`may obtain the protections of this Protective Order by giving written notice to the Parties thatit
`intends to be bound by the provisions ofthis Protective Order and designating that its provision of
`discovery is subject to the Protective Order. The subpoenaingor requesting party shall advise non-
`Parties from whom they seek documents of the existence ofthis Protective Order and their right
`to obtain its protections. To the extent that any non-Patty produces Documents or Testimony in
`this action that contains Confidential Information or Confidential Attorney Eyes Only Information
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 10 of 19
`
`of a Party to this action, that Party may designate such Documents or Testimony as Confidential
`or Confidential Attorney Eyes Only for purposesof this Protective Order by delivering written
`
`notice of such designation to the Parties at or before receipt by any counsel for the Parties of the
`
`non-Party’s production of such Documents or Testimony.
`
`a. Nothing in this Protective Orderprecludes any Party or non-Party from
`seeking relief from the Court with regard to the production ofdocuments
`or information.
`
`b. Except as expressly provided herein, this Protective Order does not
`expand, create, limit, or otherwise alter any rights any non-Party may
`
`10
`
`
`
`
`setTASERSEESSPSTET
`
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 11 of 19
`
`have to seek relief from the Court under the Rules (including Rule
`26(c)), the Local Rules, this Court’s Individual Practices, or applicable
`case law to seek to protect Confidential Information or Confidential
`Attorneys Eyes Only Information after receiving notice from a Party of
`that Party’s intended disclosure. Further, except as expressly provided
`herein, this Protective Order does not expand,create, limit or otherwise
`alter the rights any Party may have underthe foregoing provisions to
`oppose any non-party request for relief on any ground.
`
`21.
`
`A Party may upwardly designate any material produced by another Party or any
`
`non-Party (i.c., change the designation of any Discovery Material produced without a designation
`
`to a designation of “Confidential” or “Confidential Attorneys Eyes Only” or change the
`
`designation of any material produced as “Confidential”to a designation of “Confidential Attorneys
`
`Eyes Only”), provided that said Party has a basis under Paragraphs4-5 of this Protective Order to
`so designate. Upward designation shall be accomplished by providing written noticeto all Parties
`
`(and, if the material was produced by a non-Party, also to that person orentity) identifying (by
`Bates number or other individually identifiable information) the material
`to be upwardly
`
`the upwardly designated material will be treated as Confidential
`Thereafter,
`designated.
`Information or Confidential Attorneys Eyes Only Information in conformity with the new
`
`designation, and will be fully subject to this Protective Order from the date ofsuch notice forward.
`22,
`Nothing in this Protective Order. shall be deemedto restrict in any manner the use
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 11 of 19
`
`by any Designating Party of any information in its own documents and materials.
`23.
`If any Producing Party inadvertently fails to designate any information as
`
`Confidential or Confidential Attorney Eyes Only at the time of production or disclosure, that
`
`Producing Party shall not be deemed to have waived, in whole or in part, any claim to such
`
`designation, either as to specific information disclosed or as to any other information on the same
`or related subject matter, provided that promptly after discovery of such omission, the Producing
`
`11
`
`
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 12 of 19
`
`Party notifies all Parties in writing that such information constitutes or contains Confidential or
`
`Confidential Attorney Eyes Only Information.
`
`24.
`
`If counsel for any Party receives notice of any subpoena or other compulsory
`
`process commanding production of Confidential Informationor Confidential Attorney Eyes Only
`
`Information that a Party has obtained under the termsof this Protective Order, counsel for such
`
`Party shall notify the Designating Party in writing within five (5) business days of receipt of such
`
`subpoena orprocess and shall not produce such information until the Designating Party has had
`
`reasonable timeto take appropriate steps to protect such information.It shall be the responsibility
`
`of the Designating Party to obtain relief from the subpoena or order prior to the due date of
`
`compliance, In orderto give the Designating Party an opportunity to obtain suchrelief, the Party
`from whom suchinformation is sought shall not makethe disclosure before the actual due date of
`
`complianceset forth in the subpoenaor order.
`25,
`Nothing in this Protective Order shall be construed to require the disclosure of
`
`information, documents, or othertangible things that are protected from disclosure by the attorney-
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 12 of 19
`
`client privilege, the attorney work product doctrine, or any otherapplicable privilege or immunity.
`A Producing Party may produce a redacted version of information, documents, or things that it
`contends is protected from disclosure by the attorney-client privilege, the attorney work product
`doctrine, or any other identified, applicable privilege or immunity, personal information protected
`by relevant foreign laws (subject to paragraph I(1) of the Electronically Stored Information and
`Document Production Protocols), or sensitive Personal Identifying Infermation (“PII”), such as
`
`social security numbers and medical information, identifying where the privileged or immune
`
`material was redacted with the designation “Redacted ~ Privileged.”
`
`12
`
`
`
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 13 of 19
`
`26.
`
`The inadvertent production of any document or information protected by the
`
`attorney-client privilege, work product doctrine, or any other applicable privilege, doctrine, or
`
`protection shall not constitute a waiver of any such privilege, doctrine, or protection. Upon receipt
`
`of notice of such inadvertent production from the Producing Party, the receiving Party shall
`
`promptly either (a) return all copies of such document(s) to the Producing Party other than copies
`
`containing attorney notes or other attorney work product that may have been placed thereon by
`
`counsel for the receiving Party and shall destroy all copies of such documents that contain such
`
`notes orotherattorney work product and (b) provide a written certification that it will cease further
`
`review, dissemination, and use of the subject document or information, or (c) apply to the Court
`
`for resolution if the Producing Party’s claim of inadvertent production is disputed; however, the
`
`receiving Party may not use any of the information while the application to the Court is pending.
`27,
`Nothing in this Protective Ordershall be deemed to be a waiver of any Party’s right
`
`to oppose production or admissibility of any information or documents on any ground, including
`
`without limitation, lack of timeliness of the request, lack of relevance, lack of materiality, as a
`
`privileged communication, as work product of counsel, as not calculated to lead to the discovery
`of admissible evidence, or as not proportional to the needsof this case. The production subject to
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 13 of 19
`
`this Protective Order of Confidential Information or Confidential Attorney Eyes Only Information
`
`or documents containing Confidential
`
`Information or Confidential Attorney Eyes Only
`
`Information shall not be deemed a waiverof any objection to the admissibility of such information
`
`and such documentsortheir contents that may exist under any applicable Rules of Evidence,
`
`28
`
`This Protective Ordershall not preclude any Party or non-Party from seeking and
`
`obtaining from the Court additional protection with respect to the issues addressed in this
`Protective Order. No Party or non-Party that has availed itself ofthe protections of this Protective
`
`13
`
`
`
`
`
`
`
`

`

`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 14 of 19
`
`Order may withhold information from discovery on the ground that it requires protection greater
`
`than that afforded by this Protective Order unless the Party or non-Party moves for an order
`
`providing such special protection,
`
`29,
`
`In the event that a receiving Party seeks to use Confidential
`
`Information or
`
`Confidential Attorney Eyes Only Information during any hearing before the Court, including
`
`through argumentorthe presentation of evidence,that is sealed or otherwise not open to the public,
`
`such information shall not lose its status as Confidential Information or Confidential Attorney Eyes
`
`Only Information through such use.
`
`30.
`
`The provisions of this Protective Order shall continue with respect
`
`to any
`
`Confidential Information and Confidential Attorney Eyes Only Information until expressly
`
`released by the Producing Party and shall survive the conclusion of a final order or judgment in
`
`this action. Unless the Parties agree otherwise, within sixty (60) days of the later of (i) entry of a
`
`final order and judgmentin this action,or(ii) exhaustion of all appellate procedures following any
`appeal ofa final order and judgment, upon a request by the ProducingParty,all Parties and non-
`Parties shall return to the producing Party or covered entity, or shall destroy, all Confidential
`
`Information and Confidential Attorney Eyes Only Information,
`
`including all documents
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 14 of 19
`
`incorporating information from Confidential Information or Confidential Attorney Eyes Only
`Information, and all copies made thereof, including all documents or copies ofdocuments provided
`by the party to any other person, except that: (i) counsel may retain forits records its work product
`and a copy of court filings, and (ii) a receiving person may retain the aforementioned materials
`that are auto-archived or otherwise backed up on electronic management and communication
`
`systems or servers (including archives of sent or received emails), or as may be required for
`regulatory recordkeeping purposes; provided, however,
`that such retained documents shall
`
`14
`
`
`
`

`

`
`
`
`
`
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 15 of 19
`
`continue to be treated as provided in this Protective Order. If a receiving person choosesto destroy,
`
`rather than return, documents in accordance with this paragraph, that receiving person shall, if
`
`requested, verify such destruction in writing to counsel for the Producing Party. Notwithstanding
`
`anything in this paragraph, to the extent that the information in the aforementioned materials
`
`remains confidential, the terms of this Protective Order shall remain binding.
`
`31.
`
`The Court shall have continuing jurisdiction to modify, enforce,
`
`interpret, or
`
`rescind this Protective Order, notwithstanding the termination ofthis action.
`
`32.
`
`This Protective Orderis entered based on the representations and agreements ofthe
`
`Parties and for the purpose offacilitating discovery. Nothing contained herein shall be construed
`ot presented as a judicial determination that any specific document or item of information
`designated as Confidential or Confidential Attorney Eyes Only by counsel is subject to protection
`under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until such time as a
`
`document-specific ruling shall have been made.
`
`33.
`Nothing in this Protective Order shall prevent or otherwise restrict counsel from
`rendering advice to their respective clients in connection with this action, and in the course thereof,
`relying on examination of Confidential or Confidential Attorney Eyes Only material; provided,
`however, that in rendering such advice and otherwise communicating with such client, counsel
`
`Case 1:23-cv-08926-SHS Document 104 Filed 02/07/24 Page 15 of 19
`
`shall not make specific disclosure of any information in any manner that is inconsistent with the
`
`restrictions or procedures set forth herein.
`
`34.
`
`This Protective Ordershall take effect when entered and shall be binding upon the
`
`counsel who signed below,their respective law firms, and their respective clients.
`
`The foregoing S