New York Codes, Rules and Regulations › Title 22 - JUDICIARY › Subtitle A - JUDICIAL ADMINISTRATION › Chapter II - UNIFORM RULES FOR THE NEW YORK STATE TRIAL COURTS › Part 202 - Uniform Civil Rules for the Supreme Court and the County Court › Section 202.70 - Rules of the Commercial Division of the Supreme Court › Appendix F - STANDARD FORM OF CONFIDENTIALITY ORDER WITH ATTORNEY'S EYES-ONLY DESIGNATED

Current through Register Vol. 46, No. 28, July 10,
					 2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF____________
.................................... x
Plaintiff, Index No.
-
-
- against- STIPULATION AND OR-
DER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL
						INFORMATION
Defendant.
.................................... x
This matter having come before the Court by stipulation
						of plaintiff, ____, and defendant, ,(individually __________
"Party" and collectively "Parties") for the entry of a
						protective order pursuant to CPLR 3103(a), limiting the review, copying,
						dissemination and filing of confidential and/or proprietary documents and
						information to be produced by either party and their respective counsel or by
						any non-party in the course of discovery in this matter to the extent set forth
						below; and the parties, by, between and among their respective counsel, having
						stipulated and agreed to the terms set forth herein, and good cause having been
						shown; IT IS hereby ORDERED that:
1. This Stipulation is being entered into to facilitate
						the production, exchange and discovery of documents and information that the
						Parties and, as appropriate, non-parties, agree merit confidential treatment
						(hereinafter the "Documents" or "Testimony").
2. Any Party or, as appropriate, non-party, may designate
						Documents produced, or Testimony given, in connection with this action as
						"confidential" or "highly confidential - attorney's eyes only" either by
						notation on each page of the Document so designated, statement on the record of
						the deposition, or written advice to the respective undersigned counsel for the
						Parties hereto, or by other appropriate means.
3. As used here in:
(a) "Confidential Information" shall me an all Documents
						and Testimony, and all information contained therein, and other information
						designated as confidential, if such Documents or Testimony contain trade
						secrets, proprietary business information, competitively sensitive information
						or other information the disclosure of which would, in the good faith judgment
						of the Party or, as appropriate, non-party designating the material as
						confidential, be detrimental to the conduct of that Party's or non-party's
						business or the business of any of that Party's or non-party's customers or
						clients.
(b) "Highly Confidential-Attorney's Eyes-Only
						Information" shall mean any
"Confidential Information" that is of such a private,
						sensitive, competitive or proprietary nature that present disclosure to persons
						other than those identified in paragraph 5.1 below would reasonably be expected
						to cause irreparable harm or materially impair the legitimate competitive
						position or interests of the Producing Party. A designation of Confidential
						Information as Attorney's Eyes-Only Information constitutes a representation
						that such Confidential Information has been reviewed by an attorney for the
						Producing Party and that there is a valid basis for such a designation.
(c) "Producing Party" shall mean the parties to this
						action and any non-parties producing "Confidential Information" or "Highly
						Confidential - Attorney's Eyes-Only Information" in connection with
						depositions, document production or otherwise, or the Party or non-party
						asserting the confidentiality privilege, as the case may be.
(d) "Receiving Party"s hall me an the Parties to this
						action and/or any non-party receiving "Confidential Information" or "Highly
						Confidential - Attorney's Eyes-Only Information" in connection with
						depositions, document production, subpoenas or otherwise.
4. The Receiving Party may, at anytime, notify the
						Producing Party that the Receiving Party does not concur in the designation of
						a document or other material as Confidential Information or "Highly
						Confidential - Attorney's Eyes-Only Information." If the Producing Party does
						not agree to declassify such document or material within seven (7) days of the
						written request, the Receiving Party may move before the Court for an order
						declassifying those documents or materials. If no such motion is filed, such
						documents or materials
shall continue to be treated as Confidential Information
						or Highly Confidential - Attorney's Eyes-Only Information. If such motion is
						filed, the documents or other materials shall be deemed as designated by the
						Producing Party unless and until the Court rules otherwise. Notwithstanding
						anything herein to the contrary, the Producing Party bears the burden of
						establishing the propriety of its designation of documents or information as
						Confidential Information or Highly Confidential - Attorney's Eyes-Only
						Information.
5. Except with the prior written consent of the Producing
						Party or by Order of the Court, Confidential Information shall not be
						furnished, shown or disclosed to any person or entity except to:
(a) personnel of the Parties actually engaged in
						assisting in the preparation of this action for trial or other proceeding
						herein and who have been advised of their obligations hereunder;
(b) counsel for the Parties to this action and their
						associated attorneys, paralegals and other professional and non-professional
						personnel (including support staff and outside copying services) who are
						directly assisting such counsel in the preparation of this action for trial or
						other proceeding herein, are under the supervision or control of such counsel,
						and who have been advised by such counsel of their obligations
						hereunder;
(c) expert witnesses or consultants retained by the
						Parties or their counsel to furnish technical or expert services in connection
						with this action or to give testimony with respect to the subject matter of
						this action at the trial of this action or other proceeding herein; provided,
						however, that such Confidential Information is furnished, shown or disclosed in
						accordance with paragraph 7 hereof;
(d) the Court and court personnel;
(e) an officer before who made position is taken,
						including stenographic reporters and any necessary secretarial, clerical or
						other personnel of such officer;
(f) trial and deposition witnesses, if furnished, shown
						or disclosed in accordance with paragraphs 9 and 10, respectively, hereof;
						and
(g) any other person agreed to by the Producing
						Party.
5.1 Except with the prior written consent of the
						Producing Party or by Order of the Court, Highly Confidential - Attorney's
						Eyes-Only Information shall not be furnished, shown or disclosed to any person
						or entity except to those identified in paragraph 5(b)-5(g).
6. Confidential Information or" Highly
						Confidential-Attorney's Eyes-Only Information" shall be utilized by the
						Receiving Party and its counsel only for purposes of this litigation and for no
						other purposes.
7. Before any disclosure of Confidential Informationor"
						Highly Confidential - Attorney's Eyes-Only Information" is made to an expert
						witness or consultant pursuant to paragraph 5 (c) thereof, counsel for the
						Receiving Party making such disclosure shall provide to the expert witness or
						consultant a copy of this Stipulation and obtain the expert's or consultant's
						written agreement, in the form of Exhibit A attached hereto, to comply with and
						be bound by its terms. Counsel for the Receiving Party obtaining the
						certificate shall supply a copy to counsel for the other Parties at the time
						designated for expert disclosure, except that any certificate signed by an
						expert or consultant who is not expected to be called as a witness at trial is
						not required to be supplied.
8. Unless otherwise designated during the deposition, all
						depositions shall presumptively be treated as Confidential Information and
						subject to this Stipulation during the deposition and for a period of fifteen
						(15) days after a transcript of said deposition is received by counsel for each
						of the Parties. At or before the end of such fifteen day period, the deposition
						shall be classified appropriately.
9. Should the need a rise for any Party or, as
						appropriate ,non-party, to disclose Confidential Information or "Highly
						Confidential - Attorney's Eyes-Only Information" during any hearing or trial
						before the Court, including through argument or the presentation of evidence,
						such Party or, as appropriate, non-party may do so only after taking such steps
						as the Court, upon motion of the Producing Party, shall deem necessary to
						preserve the confidentiality of such Confidential Information or "Highly
						Confidential - Attorney's Eyes-Only Information."
10. This Stipulation shall not preclude counsel for any
						Party from using during any deposition in this action any Documents or
						Testimony
which has been designated as "Confidential Information"
						or "Highly Confidential - Attorney's Eyes-Only Information" under the terms
						hereof. Any deposition witness who is given access to Confidential Information
						or "Highly Confidential - Attorney's Eyes-Only Information" shall, prior
						thereto, be provided with a copy of this Stipulation and shall execute a
						written agreement, in the form of Exhibit A attached hereto, to comply with and
						be bound by its terms. Counsel for the Party obtaining the certificate shall
						supply a copy to counsel for the other Parties and, as appropriate, a non-party
						that is a Producing Party. In the event that, upon being presented with a copy
						of the Stipulation, a witness refuses to execute the agreement to be bound by
						this Stipulation, the Court shall, upon application, enter an order directing
						the witness's compliance with the Stipulation.
11. A Party may designate as Confidential Information or
						"Highly Confidential - Attorney's Eyes-Only Information" subject to this
						Stipulation any document, information, or deposition testimony produced or
						given by any non-party to this case, or any portion thereof. In the case of
						Documents, produced by a non-party, designation shall be made by notifying all
						counsel in writing of those documents which are to be stamped and treated as
						such at any time up to fifteen (15) days after actual receipt of copies of
						those documents by counsel for the Party asserting the confidentiality
						privilege. In the case of deposition Testimony, designation shall be made by
						notifying all counsel in writing of those portions which are to be stamped or
						otherwise treated as such at any time up to fifteen (15) days after the
						transcript is received by counsel for the Party (or, as appropriate, non-party)
						asserting the confidentiality. Prior to the expiration of such fifteen (15) day
						period (or until a designation is made by counsel, if such a designation is
						made in a shorter period of time), all such Documents and Testimony shall be
						treated as Confidential Information.
In Counties WITH Electronic Filing
12.
(a) A Party or, asappropriate, non-party, who seeks to
						file with the Court (i) any deposition transcripts, exhibits, answers to
						interrogatories, or other documents which have previously been designated as
						comprising or containing Confidential Information or "Highly Confidential -
						Attorney's Eyes-Only Information," or (ii) any pleading, brief or memorandum
						which reproduces, paraphrases or discloses Confidential Information or "Highly
						Confidential - Attorney's Eyes-Only Information" shall file the document,
						pleading, brief, or memorandum on the NYSCEF system in redacted form until the
						Court renders a decision on any motion to seal (the "Redacted Filing"). If the
						Producing Party fails to move to seal within seven (7) days of the Redacted
						Filing, the Party (or, as appropriate, non-party) making the filing shall take
						steps to replace the Redacted Filing with its corresponding unredacted
						version.
(b) In the event that the Party's (or,asappropriate,
						non-party's) filing includes Confidential Information or "Highly Confidential -
						Attorney's Eyes-Only Information" produced by a Producing Party that is a
						non-party, the filing Party shall so notify that Producing Party within twenty
						four (24) hours after the Redacted Filing by providing the Producing Party with
						a copy of the Redacted Filing as well as a version of the filing with the
						relevant Producing Party's Confidential Information or "Highly Confidential -
						Attorney's Eyes-Only Information" unredacted.
(c) If the Producing Party makes a timely motion to seal,
						and the motion is granted, the filing Party (or, as appropriate, non-party)
						shall ensure that all documents (or, if directed by the court, portions of
						documents) that are the subject of the order to seal are filed in accordance
						with the procedures that govern the filing of sealed documents on the NYSCEF
						system. If the Producing Party's timely motion to seal is denied, then the
						Party (or, as appropriate, non-party) making the filing shall take steps to
						replace the Redacted Filing with its corresponding unredacted version.
(d) Any Party filing a Redacted Filing in accordance with
						the procedure set forth in this paragraph 12 shall, contemporaneously with or
						prior to making the Redacted Filing, provide the other Parties and the Court
						with a complete and unredacted version of the filing.
(e) All pleadings, briefs or memorand a which reproduce,
						paraphrase or disclose any materials which have previously been designated by a
						party as comprising or containing Confidential Information or "Highly
						Confidential - Attorney's Eyes-Only Information" shall identify such documents
						by the production number ascribed to them at the time of production.
In Counties WITHOUT Electronic Filing
13.(a)A Party or, as appropriate, non-party, who seeks to
						file with the Court any deposition transcripts, exhibits, answers to
						interrogatories, and other documents which have previously been designated as
						comprising or containing Confidential Information or "Highly Confidential -
						Attorney's Eyes-Only Information," or any pleading, brief or memorandum which
						reproduces, paraphrases or discloses Confidential Information or "Highly
						Confidential - Attorney's Eyes-Only Information," shall (i) serve upon the
						other Parties (and, as appropriate, non-parties) a Redacted Filing and a
						complete and unredacted version of the filing; (ii) file a Redacted Filing with
						the court; and (iii) transmit the Redacted Filing and a complete unre-dacted
						version of the filing to chambers. Within seven (7) days thereafter, the
						Producing Party may file a motion to seal such Confidential Information or
						"Highly Confidential - Attorney's Eyes-Only Information."
(b) If the Producing Party does not file a motion to seal
						within the aforementioned seven (7) day period, the Party (or, as appropriate.
						non-party) that seeks to file the Confidential Information or "Highly
						Confidential - Attorney's Eyes-Only Information" shall take steps to file an
						unredacted version of the material.
(c) In the event the motion to seal is granted, all (or,
						if directed by the court, portions of) deposition transcripts, exhibits,
						answers to interrogatories, and other documents which have previously been
						designated by a Party (or, as appropriate, non-party) as comprising or
						containing Confidential Information or "Highly Confidential - Attorney's Eyes
						Only Information," and any pleading, brief or memorandum which reproduces,
						paraphrases or discloses such material, shall be filed in sealed envelopes or
						other appropriate sealed container on which shall be endorsed the caption of
						this litigation, the words "CONFIDENTIAL MATERIAL-SUBJECT TO STIPULATION AND
						ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION" or "HIGHLY
						CONFIDENTIAL MATERIAL - ATTORNEY'S EYES-ONLY - SUBJECT TO STIPUALTION AND ORDER
						FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION," as well as an
						indication of the nature of the contents and a statement in substantially the
						following form:
"This envelope, containing documents which are filed in
						this case by (name of Party or as appropriate, non-party), is not to be opened
						nor are the contents thereof to be displayed or revealed other than to the
						Court, the parties and their counsel of record, except by order of the Court or
						consent of the parties. Violation hereof may be regarded as contempt of the
						Court."
In the event the motion to seal is denied, then the Party
						(or, as appropriate, non-party) making the filing shall take steps to replace
						the Redacted Filing with its corresponding unredacted version.
(d) In the event that the Party's (or,as appropriate,
						non-party's) filing includes Confidential Information or "Highly Confidential -
						Attorney's Eyes-Only Information" produced by a Producing Party that is
						non-party, the Party (or, as appropriate, non-party) making the filing shall so
						notify the Producing Party within twenty four (24) hours after the Redacted
						Filing by providing the Producing Party with a copy of the Redacted Filing as
						well as a version of the filing with the relevant non-party's Confidential
						Information or "Highly Confidential - Attorney's Eyes-Only Information"
						unredacted.
(e) All pleadings, briefs or memor and a which reproduce,
						paraphrase or disclose any documents which have previously been designated by a
						party as comprising or containing Confidential Information or "Highly
						Confidential - Attorney's Eyes-Only Information" shall identify such documents
						by the production number ascribed to them at the time of production.
14. Any person receiving Confidential Information or"
						Highly Confidential - Attorney's Eyes-Only Information" shall not reveal or
						discuss such information to or with any person not entitled to receive such
						information under the terms hereof and shall use reasonable measures to store
						and maintain the Confidential Information or "Highly Confidential - Attorney's
						Eyes-Only Information" so as to prevent unauthorized disclosure.
15. Any document or information that may contain
						Confidential Information or "Highly Confidential - Attorney's Eyes-Only
						Information" that has been inadvertently produced without identification as to
						its "confidential" nature as provided in paragraphs 2 and/or 11 of this
						Stipulation, may be so designated by the party asserting the confidentiality
						privilege by written notice to the undersigned counsel for the Receiving Party
						identifying the document or information as "confidential" within a reasonable
						time following the discovery that the document or information has been produced
						without such designation.
16. Extracts and summaries of Confidential Information
						or" Highly Confidential - Attorney's Eyes-Only Information" shall also be
						treated with the same level of confidentiality as the designated information
						from which it was derived.
17. The production or disclosure of Confidential
						Information or "Highly Confidential - Attorney's Eyes-Only Information" shall
						in no way constitute a waiver of each Producing Party's right to object to the
						production or disclosure of other information in this action or in any other
						action. Nothing in this Stipulation shall operate as an admission by any Party
						or non-party that any particular document or information is, or is not,
						confidential or "highly confidential attorney's -eyes only." Failure to
						challenge a Confidential Information or "Highly Confidential - Attorney's
						Eyes-Only Information" designation shall not preclude a subsequent challenge
						thereto.
18. This Stipulation is entered into without prejudice to
						the right of any Party or non-party to seek relief from, or modification of,
						this Stipulation or any provisions thereof by properly noticed motion to the
						Court or to challenge any designation of confidentiality as inappropriate under
						the Civil Practice Law and Rules or other applicable law.
19. This Stipulation shall continue to be binding after
						the conclusion of this litigation except that there shall be no restriction on
						documents that are used as exhibits in Court (unless such exhibits were filed
						under seal); and (b) that a Receiving Party may seek the written permission of
						the Producing Party or further order of the Court with respect to dissolution
						or modification of the Stipulation. The provisions of this Stipulation shall,
						absent prior written consent of the parties, continue to be binding after the
						conclusion of this action.
20. Nothing here in shall be deemed to waive any
						privilege recognized by law, or shall be deemed an admission as to the
						admissibility in evidence of any facts or documents revealed in the course of
						disclosure.
21. Within sixty(60)days after the final termination of
						this litigation by settlement or exhaustion of all appeals, all Confidential
						Information or "Highly Confidential - Attorney's Eyes-Only Information"
						produced or designated and all reproductions thereof shall be returned to the
						Producing Party or, at the Receiving Party's option, shall be destroyed. In the
						event that any Receiving Party chooses to destroy physical objects and
						documents, such Party shall certify in writing within sixty (60) days of the
						final termination of this litigation that it has undertaken its best efforts to
						destroy such physical objects and documents, and that such physical objects and
						documents have been destroyed to the best of its knowledge. Notwithstanding
						anything to the contrary, counsel of record for the Parties may retain one copy
						of documents constituting work product, a copy of pleadings, motion papers,
						discovery responses, deposition transcripts and deposition and trial exhibits.
						This Stipulation shall not be interpreted in a manner that would violate any
						applicable rules of professional conduct. Nothing in this Stipulation shall
						prohibit or interfere with the ability of counsel for any Receiving Party, or
						of experts specially retained for this case, to represent any individual,
						corporation or other entity adverse to any Party or non-party or their
						affiliate(s) in connection with any other matter.
22. If a Receiving Party is called upon to produce
						Confidential Information or "Highly Confidential - Attorney's Eyes-Only
						Information" in order to comply with a court order, subpoena, or other
						direction by a court, administrative agency, or legislative body, the Receiving
						Party from which the Confidential Information or "Highly Confidential -
						Attorney's Eyes-Only Information" is sought shall (a) give written notice by
						overnight mail and either email or facsimile to the counsel for the Producing
						Party within five (5) business days of receipt of such order, subpoena, or
						direction, and (b) give the Producing Party five (5) business days to object to
						the production of such Confidential Information or "Highly Confidential -
						Attorney's Eyes-Only Information," if the Producing Party so desires.
						Notwithstanding the foregoing, nothing in this paragraph shall be construed as
						requiring any party to this Stipulation to subject itself to any penalties for
						noncompliance with any court order, subpoena, or other direction by a court,
						administrative agency, or legislative body.
23. This Stipulation may be changed by further order of
						this Court, and is without prejudice to the rights of a Party to move for
						relief from any of its provisions, or to seek or agree to different or
						additional protection for any particular material or information.
24. This Stipulation may be signed in counter
						parts,which, when fully executed, shall constitute a single original, and
						electronic signatures shall be deemed original signatures.
[FIRM] [FIRM]
By:By:
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New York, New York New York, New York
Tel:Tel:
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Attorneys for Plaintiff Attorneys for Defendant
Dated:
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SO ORDERED
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J.S.C.
EXHIBIT "A"
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
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.................................... x
Plaintiff, Index No.-
-
- against-AGREEMENT WITH RE-
SPECT TO
CONFIDENTIAL MATERIAL
Defendant.
.................................... x
I,________,state that:
1.My address is_________.
2.My present occupation or job description is.
						_______.
3. I have received a copy of the Stipulation for the
						Production and
Exchange of Confidential Information (the "Stipulation")
						entered in the above-entitled action on.
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4. I have carefully readand understand the provisions of
						the Stipulation.
5. I will comply with all of the provisions of the
						Stipulation.
6.I will hold inconfidence, will not disclose to anyone
						not qualified under the Stipulation, and will use only for purposes of this
						action, any Confidential Information or "Highly Confidential - Attorney's
						Eyes-Only Information" that is disclosed to me.
7. I will return all Confidential Information or "Highly
						Confidential - Attorney's Eyes Only Information" that comes into my possession,
						and documents or things that I have prepared relating thereto, to counsel for
						the party by whom I am employed or retained, or to counsel from whom I received
						the Confidential Information or "Highly Confidential - Attorney's Eyes Only
						Information."
8.I hereby submit to the jurisdiction of this court for
						the purpose of enforcement of the Stipulation in this action.
Dated:
_____