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Exhibit 5
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SUPREME COURT OF THE STATE OF NEW YORK
NTNTH AND TENTH JUDICIAL DISTRICTS
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In Te: NINTH AND TENTH $
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JUDICIAL DISTRICT CHILD $
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VICTIMS ACT LITIGATION $
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This Document Applies to All Cases in the $
Ninth and Tenth Judicial Districts Where $
the Roman Catholic Diocese of Rockville $
Centrc, New York is a Defendant $
IFROPOS'EEI STIPULATED PROTECTIVE ORDER
I. PI]RPOSES AIID LIMITATIONS
Disclosure requests and subpoenas served in these Actions may call for the production or
disclosure of confidential, private, or sensitive information for which protection from public
disclosure and from use for any purpose other than prosecuting or defending these Actions may
be wananted. Accordingly, the Parties hereby stipulate to and petition the Court to enter the
following Stipulated Protective Order ("Order") pursuant to CPLR 3103. This Order is further
intended to speciff the protocol for filing documents subject to this Order with the Court. This
Order is not intended in any way to constitute an agreement that any document or information
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should or should not be sealed, redacted, or filed in open couft, as the Parties acknowledge that
decision rests with the Coun.
2, DEFINITIONS
Actions: All Child Victims Act (CVA) cases now or hereafter commenced pursuant to
CPLR 214-gin the Ninth and Tenth Judicial Districts where the Roman Catholic Diocese of
Rockville Centre is named as a party-defendant, as set forth in the Case Management Order, so-
ordered in these Actions on November 18,2019.
Par?: any party to an Action, including alt of its officers, directors, and employees.
Non-Party: any natural person or entity that is not a named party to an Action.
Discovery Material: all items or information, regardless of the medium or manner
generated, stored, or maintained, including, among other things, documents, testimony,
intenogatory responses, transcripts, depositions and deposition exhibits, responses to requests to
admit, recorded or graphic matter, electronically stored information, tangible things, and/or other
information produced, given, exchanged by, or obtained from any Party or Non-Party during
discovery in any Action.
Confidential Material: any Producing Party (as defined below) may, subject to the
provisions of this Order, designate as "Confidential" any Discovery Material that the Producing
Party reasonably and in good faith believes constitutes and reveals confidential, private, or
sensitive information concerning individuals or other entities.
Privileeed Material: Discovery Material protected from disclosure under the attorney-
client privilege, work product doctrine, and/or any other applicable law, regulation, privilege, or
immunity from disclosure.
Producing Partv: any Party or Non-Party that produces Discovery Material in an Action.
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Receiving Partv: any Party or Non-Party that receives Discovery Material from a
Producing Party.
Desienatine Party: any Party or Non-Party that designates Discovery Material as
"Confidential."
Expert and/or Consultant: a person with specialized knowledge or experience in a matter
pertinent to an Action, along with his or her employees and support personnel, who has been
retained by a Party or its counsel to serve as an expert witness or as a consultant in an Action,
and who is not currently an employee of a Party and who, at the time of retention, is not
anticipated to become an employee of a Party.
Professionat Vendors: persons or entities that provide litigation support services (e,g.,
photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing,
storing, or processing data in any form or medium) and their employees and subcontractors.
3. SCOPE
The protections conferred by this Order cover not only Discovery Material (as defined
above), but also any information copied or extracted therefrom, as well as all copies, excerpts,
summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or
counsel in settings that might reveal Confidential Material. However, except as set forth herein,
this Order shall not be construed to cause any Counsel to produce, return, and/or destroy their
own attornoy work product, or the work product of their co-counsel, created in anticipation of or
in connection with an Action.
4. DURATION
The confidentialiry obligations imposed by this Order shall remain in effect untilthe
Designating Party agrees otherwise in writing or this Court orders otherwise. The Court
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anticipates addressing this Order in advance of any trial of an Action and acknowledges the
standard for redacting or sealing information may be different for trial.
5. DESIGNATING CONFIDENTIAL MATERIAL
Except as otherwise provided in this Order, or as otherwise stipulated or ordered, material
that qualifies for protection under this Order must be clearly so designated before the material is
disclosed or produced. Designation in conformity with this Order requires that the Producing
Party affix the legend "Confidential" in a prominent place on each page of such document prior
to production. In the case of documents produced in electronic form, the Producing Party must
affix the legend "Confidential" in a prominent place on each electronic record, if feasible, and on
the exterior of the container or containers in which the information or item is stored and/or
include the information in the metadata produced for the documents.
If a Producing Party discovers that it produced material that was not designated as
Confidential Material but was intended to be designated as Confidential Material, the Producing
Party may promptly notiry all Receiving Parties, in writing, of the error and identiff (by
production number or electronic form container) the affected material and its designation as
Confidential Material. Thereafter, the material so designated or re-designated will be treated as
Confidential Material. Promptly after providing such notice, the Producing Party shall provide
re-labeled copies of the material to each Receiving Party reflecting the change in designation.
Each Receiving Party shall make reasonable efforts to delete and replace the inconectly
designated material, and all copies thereof, with the newly designated material and to destroy the
incorrectly designated material. If corrected, an inadvertent failure to designate qualified
information or items as Confidential Material does not waive the Producing Party's right to
secure protection under this Order for such material.
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6, CHALLENGING CONFIDENTIALITY DESIGNATIONS
If a Party elects to challenge a Designating Party's confidentiality designation, it must do
so in good faith and must begin the process by notifring the Designating Party in writing of its
challenge and identiffing the challenged material with as much specificity as reasonably
practical, including for example, by production number, and by providing a basis for the
challenge. The objecting Party and the Designating Party shall, within ten (10) business days
after service of the written objections, meet and confer conceming the objection, unless
otherwise agreed.
If the Parties are not able to resolve a dispute about a confidentiality designation during
the meet and confer process set forth above, the party requesting the designation shall seek relief
from the Court in accordance with its rules and procedures within ten (10) business days of the
meet and confer. Until the Court rules on the dispute, all Parties shall continue to afford the
material in question the level of protection to which it is entitled under the Designating Party's
designation. In the event that the final ruling is that the challenged material's designation should
be changed, the Designating Party shall reproduce copies of all materials with their designations
removed or changed in accordance with the ruling within fifteen (15) business days of the ruling.
7. ACCESS TO AI\D USE OF COMIDENTIAL MATERIAL
Subject to any other written agreement among or between Producing Parties and/or
Receiving Parties, and unless otherwise ordered by the Court, a Receiving Party may access or
use Confidential Material that is disclosed or produced by a Producing Party only in connection
with the prosecution of, defense of, appeal of attempted settlement of, or the enforcement of
insurance rights with respect to the Action in which it was produced by the Producing Parfy.
Except as required by law, Confidential Material may not be used for any other purpose,
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including, without limitation, any business or commercial purpose, any purpose related to any
other investigation or proceeding, or evaluation of other potential claims unrelated to the claims at
issue in the Action in which the Confidential Material was produced. ConfidentialMaterial may be
disclosed only to the categories of persons and under the conditions described in this Order'
Notwithsanding the foregoing, consistent with the provisions of the Case Management Order
in these Actions, any Producing Party may designate Discovery or Confidential Material for use in
the prosecution of, defense of appeal of, attempted settlement of, or the enforcement of
insurance rights with respect to multiple Actions. Similarly, any Receiving Parry may ask the
Court for permission to use Discovery or Confidential Material in the prosecution of, defense of,
appeal of attempted settlement of or the enforcement of insurance rights with respect to other
Actions.
Confidential Material must be stored and maintained by a Receiving ParU at a location
and in a secure manner that ensures that access is reasonably limited to the persons authorized
under this Order. For purposes of this Order, a secure website, or other internet-based document
depository with adequate security, shall be deemed a secure location.
Disclosure of Confidential Material: Unless otherwise ordered by the Court or permitted in
writing by the Designating ParU, material designated "Confidential" may be disclosed by a
Receiving Party only to ttre following persons:
a. named Parties;
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b. spouses or significant others of named parties who have signed the "Agreement to
Be Bound By Protective Order" (Exhibit A);
c. the Receiving Party's Counsel, including in-house counsel, staff, paralegals, and
investigators;
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d. Experts and/or Consultants retained by a Party or its Counsel to serve as an expert
witness or as a consultant in an Action and who have signed the o'Agreement To
Be Bound By Protective Order" (Exhibit A), provided that Counsel, in good faith,
requires their assistance in connection with the Action; and provided further that
any part ofa report created by such expert or consultant incorporating
Confidential Material in whole or in part shall be designated appropriately by the
Party responsible for its creation; and provided further that experts or consultants
may not use Confidential Material for any purpose that does not relate to the
Action;
e. the Court and its personnel, subject to the requirements of this Order;
f. special masters, mediators, or other third parties who are appointed by the Court
or retained by the Parties for settlement purposes or resolution of discovery or
other disputes and their necessary personnel and, in the case ofpersons retained
by the Parties, who have signed the "Agreement To Be Bound by Protective
Order" (Exhibit A);
g. court reporters and/or videographers, their staffs, and Professional Vendors to the
extent that such disclosure is reasonably necessary for an Action;
h. the author, addressees, or recipients of the document, or any other natural person
who reviewed or had access to such document during his or her employment as a
result of the substantive nature of his or her employment position, or who is
specifically identified in the document or its accompanying metadata, provided,
however, that (i) the disclosure is made for the purpose of advancing the
disclosing party's claims or defenses, and for no other purposes; (ii) the witness is
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not perrnitted to retain copies of the Confidential Material after the witness is
examined regarding the Confidential Material; and (iii) the witness is explicitly
informed by Counsel for the party seeking to use the Confidential Material that
this Protective Order forbids him or her to disclose the Confidential Material
except as permitted under this hotective Order and that he or she is subject to the
Court's jurisdiction for the purposes of enforcing this Protective Order;
i. a witness who has been subpoenaed or noticed for deposition, trial testimony, or
other oourt proceeding in the above-captioned case not otherwise authorized to
view the Confidential Material in question, during that witness' testimony at a
deposition, hearing, or trial in the above+aptioned case, or in preparation for the
same, provided that (i) the disclosure is made for the purpose of advancing the
disclosing party's claims or defenses, and for no other purposes; (ii) the witness is
not permitted to retain the Confidential Material after the witnesses is examined
regarding the Confidential Material; and (iii)the witness is explicitly informed by
Counsel for the party seeking to use the Confidential Material that this Protective
Order forbids him or her to disclose the Confidential Material except as permitted
under this Protective Order and that he or she is subject to the Court's jurisdiction
for the purposes of enforcing this Protective Order;
j. relevant employees of any insurer to a Party to the extent that such disclosure
is reasonably necessary forthe defense of that Party in that Action and who
have signed the "Agreement To Be Bound By Protective Order" (Exhibit A);
k. any other person agreed to by the Designating Party in writing; and
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l. any other person to whom the Court compels disclosure of the Confidential
Material or to whom disclosure is required by law, subject to the requirements of
this Order.
Counsel for the Party that obtains the signed "Agreement To Be Bound By Protective
Order" (Exhibit A), as required above, shall retain them for six (6) months following the final
termination of the Action, including any appeals, and shall make them available to other Parties
upon good cause shown.
8. IINAUTHORIZED DISCLOSI'RE OF CONFIDENTIAL MATERIAL
If a Receiving Parfy learns that, by inadvertence or otherwise, it has disclosed
Confidential Material to any person or in any circumstance not authorized under this Order, the
Receiving Party must, as soon as practicable, but in any event, not longer than five (5) business
days after discovery of the disclosure by Counsel, (a) notiff in writing the Designating Party of
the unauthorized disclosures, (b) make commercially reasonable efforts to retrieve all copies of
the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of allthe terms of this Order, and (d) request such person or persons to execute the
"Agreement To Be Bound by Protective Order" (Exhibit A).
9. FILING PROTECTED MATERIAL
In the event that Counsel for any Party determines to file or submit in writing to the Clerk
of Court's office any Confidential Material, or any papers containing the substance of such
Confidential material or information, such documents or portions thereof containing such
material or information shall be submitted directly to the Regional CVA Part via electronic mail
with simultaneous transmission to all Counsel in the Action.
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Within five (5) court days of any such transmission, Counsel for the Parties shall meet
and confer in good faith in an attempt to reach agreement as to appropriate redaotions and/or
sealing of any such Confidential Material. [f Counsel for the Parties cannot reach agreement,
any dispute shall be submitted via a joint letter to the Court, not to exceed five pages within ten
(I0) days of the meet and confer. Any Party may use its portion of any such joint letterto
request full briefing of the dispute.
If the Court agrees that Confidential Material should be redacted or sealed, the
Confidential Material shall be redacted or filed under seal in accordance with the rules of the
Court, and kept redacted and/or under seal until further order of the Court. Where possible, only
confidential portions of filings with the Court shallbe inscribed with the phrase: "Confidential-
Subject to Court Order."
Redacting and/or filing under seal shall be without prejudice to any Party's right to argue
to the Court that such document is not Confidential Material and need not be redacted and/or
preserved under seal.
IO. FINAL DISPOSITION
Except as provided by law or other regulatory authority or unless otherwise ordered or
agreed in writing by the Producing Party, within sixty (60) calendar days after the final
termination of an Action, including any appeals, each Receiving Party shall undertake
commercially reasonable efforts to retum to the Producing Party all Confidential Material or, at
the option of the Receiving Purty, to destroy all Confidential Material produced in the Action. In
either case, the Receiving Party shall, upon request, provide the Designating Party with a
certification stating that it has taken commercially reasonable efforts to destroy or return the
Confidential Material, except for (i) such information or materialthat was transmitted
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electronically and whose removal or destruction from a Party's electronic systems would violate
applicable federal or state law, rule or regulation, or policies and procedures reasonably designed
to ensure compliance with such law, rule or regulation, and that (ii) information saved on backup
media in an electronically stored format will be certified to have complied with the 60-day
destruction period if the Party has a data destruction policy for the backup media resulting in the
eventual destruction or overwriting of the electronically stored information. In the event the
same Confidential Material was designated for use in connection with multiple Actions, each
Receiving Party's obligation to return or destroy such Confidential Material shall not begin to
run until the final termination of all such Actions to which the Receiving Party is a party'
This Order shall survive the termination of the Actions, and this Court shall have
continuing jurisdiction for enforcement of its provisions or altering its provisions following
termination of the Actions. No part of the restrictions imposed by this Order may be waived or
terminated, except by written stipulation executed by Counsel for each Designating Party or by
an Order of the Court for good cause shown.
11. DESIGNATING / PRODUCING PARTY'S USE OF ITS OWN DOCUMENTS
Nothing in this Order shall be construed to limit in any way any Producing Party's,
Receiving Party's, or any other person's use of its own documents, including documents
obtained independently and lawfully from sources other than a Producing Pu.ty, nor shall it
affect any Producing Party's, Receiving Party's, or any other porson's subsequent waiver of its
own prior designation with respect to its own Confidential Material.
12. CLAW BACK OF INADVERTENTLY PRODUCED PRIVILEGED
MATERIAL
In order to claw back Privileged Material that was produced inadvertently, the Producing
Party must provide notice in writing to the Receiving Party specifiing the production number of
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the Discovery Material it wishes to claw back, and the basis of the claim that it is Privileged
Material.
Upon notice that a Producing Party wishes to claw back Discovery Material protected as
Privileged Material that was produced inadvertently, the Receiving Party shall promptly
undertake commercially reasonable efforts to return to the Producing Party and destroy all
summaries or copies of such Privileged Material, shall provide notice in writing that the
Receiving Party has undertaken reasonable efforts to return and destroy such Privileged Material,
and shall not use such items for any purpose until further order of the Court.
In all events, such return, destruction, and certification must occur within ten (10)
business days of receipt of the request, unless the Receiving Party provides notice of its intentto
challenge the assertion of a claim of protection (the "Challenge Notice"), in which event the
Receiving Party may retain no more copies (the "Retained Copies") of the disclosed material
than are sufficient to prosecute its challenge to the assertion of protection. Having provided a
Challenge Notice, the Receiving Party must raise a challenge with the Court within forty-five
(45) days of that Challenge Notice, or otherwise return or destroy the Retained Copies within
that period. Moreover, in the event a Challenge Notice is provided, the Receiving Party shall
make no use of the Discovery Material subject to the request for return other than in connection
with the Receiving Parfy's prosecution of its challenge to the assertion of privilege, until the
Challenge is resolved.
For the avoidance of doubt, nothing in this paragraph shall be construed as restricting the
right of any Party to challenge a claim of privilege after rctum or destruction of the Retained
Copies. Within twenty-one (21) business days of the notification that reasonable efforts have
been taken to return or destroy the Privileged Material, the Producing Party shall produce a
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privilege log with respect to the Privileged Material. The return of any Discovery Material to
the Producing Party shall not in any way preclude the Receiving Party from moving the Court
for a ruling that the disclosed information was never privileged; however, the Receiving Party
may not assert as a basis for the relief it seeks the fact or circumstance that such privileged
documents have already been produced. Alleged Privileged Material shall remain protected
against disclosure and use during the pendency ofany dispute over their status.
13. USE OF CONFIDENTIAL MATERIAL AT TRIAL
The undersigned agree to meet and confer concerning the use of any Confidential
Material at hearings or at the trial of an Action not fewer than five (5) business days prior to any
such hearing or trial. Where a hearing or trial is scheduled on less than five (5) business days'
notice, the parties agree to meet and confer as soon as practicable after receiving notice, but in
any event, not fewer than24 hours in advance of the hearing or trial. The use of Confidential
Material at hearings or at trial shall not cause such Confidential Material to lose its status as
Confidential Material, but the Court's review and consideration of ConfidentialMaterialmay
impact the Court's decision as to whether the Confidential Material should be redacted and/or
sealed.
14. ATTORNEY REI{DERING ADVICE
Nothing in this Order will bar or otherwise restrict an attorney from rendering advice to
his or her client or from relying upon or generally referring to Confidential Material in rendering
such advice; provided, however, that, in rendering such advice or in otherwise communicating
with his or her client, the attorney shall not reveal or disclose the specific content of Confidential
Material ifsuch disclosure is not otherwide permitted under this Order.
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15. LEGAL PROCESS
If a Receiving Party is served with a discovery request, subpoena, or an order issued in
other litigation, or receives some other form of legal process or request from any court, federalor
state regulatory or administrative body or agency, legislative body, self-regulatory organization
or other person or entity purporting to have authority to require the production thereof, that seeks
disclosure of any information or items designated in an Action as Confidential, the Receiving
Party must notif,, to the extent permitted by law and the rules, requirements or requests of any
relevant governmental or self-regulatory organization, the Designating Party, in writing (by fax
or electronic mail, if possible), and include with that notice a copy of the discovery request,
subpoena, order, or other form oflegal process as soon as reasonably practicable and in any
event no later than ten (10) business days after receipt unless production is required earlier, in
which case the notice must be made in time for the Designating Party to take steps as set forth
below.
The Receiving Party also must promptly inform the party that caused the discovery
request, subpoena, order, or other form oflegal process or request to issue that some or all ofthe
material covered by the subpoena or order is the subject of this Order. In addition, the Receiving
Party must deliver a copy of this Order promptly to the party in the other matter that caused the
discovery request, subpoena, order, or other form oflegal process or request to issue. To the
extent consistent with the rules, requirements or requests of any relevant governmental or self-
regulatory organization, the Receiving Party shall not produce the requested Confidential
Material unless and until a court of competent jurisdiction so directs, except if the Designating
Party (a) consents, or (b) fails to timely file a motion to quash or fails to timely notiry the
Receiving Party in writing of its intention to contest the production of the Confidential Material
prior to the date designated for production of the Confidential Material, in which event the
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Accordingly, the Parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order ("Order") pursuant to CPLR 3103. This Order is further intended to speciff the protocol for filing documents subject to this Order with the Court. This Order is not intended in any way to constitute an agreement that any document or information 1 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 should or should not be sealed, redacted, or filed in open couft, as the Parties acknowledge that decision rests with the Coun. 2, DEFINITIONS Actions: All Child Victims Act (CVA) cases now or hereafter commenced pursuant to CPLR 214-gin the Ninth and Tenth Judicial Districts where the Roman Catholic Diocese of Rockville Centre is named as a party-defendant, as set forth in the Case Management Order, so- ordered in these Actions on November 18,2019. Par?: any party to an Action, including alt of its officers, directors, and employees. Non-Party: any natural person or entity that is not a named party to an Action. Discovery Material: all items or information, regardless of the medium or manner generated, stored, or maintained, including, among other things, documents, testimony, intenogatory responses, transcripts, depositions and deposition exhibits, responses to requests to admit, recorded or graphic matter, electronically stored information, tangible things, and/or other information produced, given, exchanged by, or obtained from any Party or Non-Party during discovery in any Action. Confidential Material: any Producing Party (as defined below) may, subject to the provisions of this Order, designate as "Confidential" any Discovery Material that the Producing Party reasonably and in good faith believes constitutes and reveals confidential, private, or sensitive information concerning individuals or other entities. Privileeed Material: Discovery Material protected from disclosure under the attorney- client privilege, work product doctrine, and/or any other applicable law, regulation, privilege, or immunity from disclosure. Producing Partv: any Party or Non-Party that produces Discovery Material in an Action. 2 2 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 Receiving Partv: any Party or Non-Party that receives Discovery Material from a Producing Party. Desienatine Party: any Party or Non-Party that designates Discovery Material as "Confidential." Expert and/or Consultant: a person with specialized knowledge or experience in a matter pertinent to an Action, along with his or her employees and support personnel, who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in an Action, and who is not currently an employee of a Party and who, at the time of retention, is not anticipated to become an employee of a Party. Professionat Vendors: persons or entities that provide litigation support services (e,g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, or processing data in any form or medium) and their employees and subcontractors. 3. SCOPE The protections conferred by this Order cover not only Discovery Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or counsel in settings that might reveal Confidential Material. However, except as set forth herein, this Order shall not be construed to cause any Counsel to produce, return, and/or destroy their own attornoy work product, or the work product of their co-counsel, created in anticipation of or in connection with an Action. 4. DURATION The confidentialiry obligations imposed by this Order shall remain in effect untilthe Designating Party agrees otherwise in writing or this Court orders otherwise. The Court 3 3 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 anticipates addressing this Order in advance of any trial of an Action and acknowledges the standard for redacting or sealing information may be different for trial. 5. DESIGNATING CONFIDENTIAL MATERIAL Except as otherwise provided in this Order, or as otherwise stipulated or ordered, material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires that the Producing Party affix the legend "Confidential" in a prominent place on each page of such document prior to production. In the case of documents produced in electronic form, the Producing Party must affix the legend "Confidential" in a prominent place on each electronic record, if feasible, and on the exterior of the container or containers in which the information or item is stored and/or include the information in the metadata produced for the documents. If a Producing Party discovers that it produced material that was not designated as Confidential Material but was intended to be designated as Confidential Material, the Producing Party may promptly notiry all Receiving Parties, in writing, of the error and identiff (by production number or electronic form container) the affected material and its designation as Confidential Material. Thereafter, the material so designated or re-designated will be treated as Confidential Material. Promptly after providing such notice, the Producing Party shall provide re-labeled copies of the material to each Receiving Party reflecting the change in designation. Each Receiving Party shall make reasonable efforts to delete and replace the inconectly designated material, and all copies thereof, with the newly designated material and to destroy the incorrectly designated material. If corrected, an inadvertent failure to designate qualified information or items as Confidential Material does not waive the Producing Party's right to secure protection under this Order for such material. 4 4 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 6, CHALLENGING CONFIDENTIALITY DESIGNATIONS If a Party elects to challenge a Designating Party's confidentiality designation, it must do so in good faith and must begin the process by notifring the Designating Party in writing of its challenge and identiffing the challenged material with as much specificity as reasonably practical, including for example, by production number, and by providing a basis for the challenge. The objecting Party and the Designating Party shall, within ten (10) business days after service of the written objections, meet and confer conceming the objection, unless otherwise agreed. If the Parties are not able to resolve a dispute about a confidentiality designation during the meet and confer process set forth above, the party requesting the designation shall seek relief from the Court in accordance with its rules and procedures within ten (10) business days of the meet and confer. Until the Court rules on the dispute, all Parties shall continue to afford the material in question the level of protection to which it is entitled under the Designating Party's designation. In the event that the final ruling is that the challenged material's designation should be changed, the Designating Party shall reproduce copies of all materials with their designations removed or changed in accordance with the ruling within fifteen (15) business days of the ruling. 7. ACCESS TO AI\D USE OF COMIDENTIAL MATERIAL Subject to any other written agreement among or between Producing Parties and/or Receiving Parties, and unless otherwise ordered by the Court, a Receiving Party may access or use Confidential Material that is disclosed or produced by a Producing Party only in connection with the prosecution of, defense of, appeal of attempted settlement of, or the enforcement of insurance rights with respect to the Action in which it was produced by the Producing Parfy. Except as required by law, Confidential Material may not be used for any other purpose, 5 5 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 including, without limitation, any business or commercial purpose, any purpose related to any other investigation or proceeding, or evaluation of other potential claims unrelated to the claims at issue in the Action in which the Confidential Material was produced. ConfidentialMaterial may be disclosed only to the categories of persons and under the conditions described in this Order' Notwithsanding the foregoing, consistent with the provisions of the Case Management Order in these Actions, any Producing Party may designate Discovery or Confidential Material for use in the prosecution of, defense of appeal of, attempted settlement of, or the enforcement of insurance rights with respect to multiple Actions. Similarly, any Receiving Parry may ask the Court for permission to use Discovery or Confidential Material in the prosecution of, defense of, appeal of attempted settlement of or the enforcement of insurance rights with respect to other Actions. Confidential Material must be stored and maintained by a Receiving ParU at a location and in a secure manner that ensures that access is reasonably limited to the persons authorized under this Order. For purposes of this Order, a secure website, or other internet-based document depository with adequate security, shall be deemed a secure location. Disclosure of Confidential Material: Unless otherwise ordered by the Court or permitted in writing by the Designating ParU, material designated "Confidential" may be disclosed by a Receiving Party only to ttre following persons: a. named Parties; I b. spouses or significant others of named parties who have signed the "Agreement to Be Bound By Protective Order" (Exhibit A); c. the Receiving Party's Counsel, including in-house counsel, staff, paralegals, and investigators; 6 6 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 d. Experts and/or Consultants retained by a Party or its Counsel to serve as an expert witness or as a consultant in an Action and who have signed the o'Agreement To Be Bound By Protective Order" (Exhibit A), provided that Counsel, in good faith, requires their assistance in connection with the Action; and provided further that any part ofa report created by such expert or consultant incorporating Confidential Material in whole or in part shall be designated appropriately by the Party responsible for its creation; and provided further that experts or consultants may not use Confidential Material for any purpose that does not relate to the Action; e. the Court and its personnel, subject to the requirements of this Order; f. special masters, mediators, or other third parties who are appointed by the Court or retained by the Parties for settlement purposes or resolution of discovery or other disputes and their necessary personnel and, in the case ofpersons retained by the Parties, who have signed the "Agreement To Be Bound by Protective Order" (Exhibit A); g. court reporters and/or videographers, their staffs, and Professional Vendors to the extent that such disclosure is reasonably necessary for an Action; h. the author, addressees, or recipients of the document, or any other natural person who reviewed or had access to such document during his or her employment as a result of the substantive nature of his or her employment position, or who is specifically identified in the document or its accompanying metadata, provided, however, that (i) the disclosure is made for the purpose of advancing the disclosing party's claims or defenses, and for no other purposes; (ii) the witness is 7 7 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 not perrnitted to retain copies of the Confidential Material after the witness is examined regarding the Confidential Material; and (iii) the witness is explicitly informed by Counsel for the party seeking to use the Confidential Material that this Protective Order forbids him or her to disclose the Confidential Material except as permitted under this hotective Order and that he or she is subject to the Court's jurisdiction for the purposes of enforcing this Protective Order; i. a witness who has been subpoenaed or noticed for deposition, trial testimony, or other oourt proceeding in the above-captioned case not otherwise authorized to view the Confidential Material in question, during that witness' testimony at a deposition, hearing, or trial in the above+aptioned case, or in preparation for the same, provided that (i) the disclosure is made for the purpose of advancing the disclosing party's claims or defenses, and for no other purposes; (ii) the witness is not permitted to retain the Confidential Material after the witnesses is examined regarding the Confidential Material; and (iii)the witness is explicitly informed by Counsel for the party seeking to use the Confidential Material that this Protective Order forbids him or her to disclose the Confidential Material except as permitted under this Protective Order and that he or she is subject to the Court's jurisdiction for the purposes of enforcing this Protective Order; j. relevant employees of any insurer to a Party to the extent that such disclosure is reasonably necessary forthe defense of that Party in that Action and who have signed the "Agreement To Be Bound By Protective Order" (Exhibit A); k. any other person agreed to by the Designating Party in writing; and 8 8 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 l. any other person to whom the Court compels disclosure of the Confidential Material or to whom disclosure is required by law, subject to the requirements of this Order. Counsel for the Party that obtains the signed "Agreement To Be Bound By Protective Order" (Exhibit A), as required above, shall retain them for six (6) months following the final termination of the Action, including any appeals, and shall make them available to other Parties upon good cause shown. 8. IINAUTHORIZED DISCLOSI'RE OF CONFIDENTIAL MATERIAL If a Receiving Parfy learns that, by inadvertence or otherwise, it has disclosed Confidential Material to any person or in any circumstance not authorized under this Order, the Receiving Party must, as soon as practicable, but in any event, not longer than five (5) business days after discovery of the disclosure by Counsel, (a) notiff in writing the Designating Party of the unauthorized disclosures, (b) make commercially reasonable efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of allthe terms of this Order, and (d) request such person or persons to execute the "Agreement To Be Bound by Protective Order" (Exhibit A). 9. FILING PROTECTED MATERIAL In the event that Counsel for any Party determines to file or submit in writing to the Clerk of Court's office any Confidential Material, or any papers containing the substance of such Confidential material or information, such documents or portions thereof containing such material or information shall be submitted directly to the Regional CVA Part via electronic mail with simultaneous transmission to all Counsel in the Action. 9 9 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 Within five (5) court days of any such transmission, Counsel for the Parties shall meet and confer in good faith in an attempt to reach agreement as to appropriate redaotions and/or sealing of any such Confidential Material. [f Counsel for the Parties cannot reach agreement, any dispute shall be submitted via a joint letter to the Court, not to exceed five pages within ten (I0) days of the meet and confer. Any Party may use its portion of any such joint letterto request full briefing of the dispute. If the Court agrees that Confidential Material should be redacted or sealed, the Confidential Material shall be redacted or filed under seal in accordance with the rules of the Court, and kept redacted and/or under seal until further order of the Court. Where possible, only confidential portions of filings with the Court shallbe inscribed with the phrase: "Confidential- Subject to Court Order." Redacting and/or filing under seal shall be without prejudice to any Party's right to argue to the Court that such document is not Confidential Material and need not be redacted and/or preserved under seal. IO. FINAL DISPOSITION Except as provided by law or other regulatory authority or unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) calendar days after the final termination of an Action, including any appeals, each Receiving Party shall undertake commercially reasonable efforts to retum to the Producing Party all Confidential Material or, at the option of the Receiving Purty, to destroy all Confidential Material produced in the Action. In either case, the Receiving Party shall, upon request, provide the Designating Party with a certification stating that it has taken commercially reasonable efforts to destroy or return the Confidential Material, except for (i) such information or materialthat was transmitted 10 10 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 electronically and whose removal or destruction from a Party's electronic systems would violate applicable federal or state law, rule or regulation, or policies and procedures reasonably designed to ensure compliance with such law, rule or regulation, and that (ii) information saved on backup media in an electronically stored format will be certified to have complied with the 60-day destruction period if the Party has a data destruction policy for the backup media resulting in the eventual destruction or overwriting of the electronically stored information. In the event the same Confidential Material was designated for use in connection with multiple Actions, each Receiving Party's obligation to return or destroy such Confidential Material shall not begin to run until the final termination of all such Actions to which the Receiving Party is a party' This Order shall survive the termination of the Actions, and this Court shall have continuing jurisdiction for enforcement of its provisions or altering its provisions following termination of the Actions. No part of the restrictions imposed by this Order may be waived or terminated, except by written stipulation executed by Counsel for each Designating Party or by an Order of the Court for good cause shown. 11. DESIGNATING / PRODUCING PARTY'S USE OF ITS OWN DOCUMENTS Nothing in this Order shall be construed to limit in any way any Producing Party's, Receiving Party's, or any other person's use of its own documents, including documents obtained independently and lawfully from sources other than a Producing Pu.ty, nor shall it affect any Producing Party's, Receiving Party's, or any other porson's subsequent waiver of its own prior designation with respect to its own Confidential Material. 12. CLAW BACK OF INADVERTENTLY PRODUCED PRIVILEGED MATERIAL In order to claw back Privileged Material that was produced inadvertently, the Producing Party must provide notice in writing to the Receiving Party specifiing the production number of 1I 11 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 the Discovery Material it wishes to claw back, and the basis of the claim that it is Privileged Material. Upon notice that a Producing Party wishes to claw back Discovery Material protected as Privileged Material that was produced inadvertently, the Receiving Party shall promptly undertake commercially reasonable efforts to return to the Producing Party and destroy all summaries or copies of such Privileged Material, shall provide notice in writing that the Receiving Party has undertaken reasonable efforts to return and destroy such Privileged Material, and shall not use such items for any purpose until further order of the Court. In all events, such return, destruction, and certification must occur within ten (10) business days of receipt of the request, unless the Receiving Party provides notice of its intentto challenge the assertion of a claim of protection (the "Challenge Notice"), in which event the Receiving Party may retain no more copies (the "Retained Copies") of the disclosed material than are sufficient to prosecute its challenge to the assertion of protection. Having provided a Challenge Notice, the Receiving Party must raise a challenge with the Court within forty-five (45) days of that Challenge Notice, or otherwise return or destroy the Retained Copies within that period. Moreover, in the event a Challenge Notice is provided, the Receiving Party shall make no use of the Discovery Material subject to the request for return other than in connection with the Receiving Parfy's prosecution of its challenge to the assertion of privilege, until the Challenge is resolved. For the avoidance of doubt, nothing in this paragraph shall be construed as restricting the right of any Party to challenge a claim of privilege after rctum or destruction of the Retained Copies. Within twenty-one (21) business days of the notification that reasonable efforts have been taken to return or destroy the Privileged Material, the Producing Party shall produce a t2 12 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 privilege log with respect to the Privileged Material. The return of any Discovery Material to the Producing Party shall not in any way preclude the Receiving Party from moving the Court for a ruling that the disclosed information was never privileged; however, the Receiving Party may not assert as a basis for the relief it seeks the fact or circumstance that such privileged documents have already been produced. Alleged Privileged Material shall remain protected against disclosure and use during the pendency ofany dispute over their status. 13. USE OF CONFIDENTIAL MATERIAL AT TRIAL The undersigned agree to meet and confer concerning the use of any Confidential Material at hearings or at the trial of an Action not fewer than five (5) business days prior to any such hearing or trial. Where a hearing or trial is scheduled on less than five (5) business days' notice, the parties agree to meet and confer as soon as practicable after receiving notice, but in any event, not fewer than24 hours in advance of the hearing or trial. The use of Confidential Material at hearings or at trial shall not cause such Confidential Material to lose its status as Confidential Material, but the Court's review and consideration of ConfidentialMaterialmay impact the Court's decision as to whether the Confidential Material should be redacted and/or sealed. 14. ATTORNEY REI{DERING ADVICE Nothing in this Order will bar or otherwise restrict an attorney from rendering advice to his or her client or from relying upon or generally referring to Confidential Material in rendering such advice; provided, however, that, in rendering such advice or in otherwise communicating with his or her client, the attorney shall not reveal or disclose the specific content of Confidential Material ifsuch disclosure is not otherwide permitted under this Order. l3 13 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18 RECEIVED NYSCEF: 03/02/2020 08/07/2020 15. LEGAL PROCESS If a Receiving Party is served with a discovery request, subpoena, or an order issued in other litigation, or receives some other form of legal process or request from any court, federalor state regulatory or administrative body or agency, legislative body, self-regulatory organization or other person or entity purporting to have authority to require the production thereof, that seeks disclosure of any information or items designated in an Action as Confidential, the Receiving Party must notif,, to the extent permitted by law and the rules, requirements or requests of any relevant governmental or self-regulatory organization, the Designating Party, in writing (by fax or electronic mail, if possible), and include with that notice a copy of the discovery request, subpoena, order, or other form oflegal process as soon as reasonably practicable and in any event no later than ten (10) business days after receipt unless production is required earlier, in which case the notice must be made in time for the Designating Party to take steps as set forth below. The Receiving Party also must promptly inform the party that caused the discovery request, subpoena, order, or other form oflegal process or request to issue that some or all ofthe material covered by the subpoena or order is the subject of this Order. In addition, the Receiving Party must deliver a copy of this Order promptly to the party in the other matter that caused the discovery request, subpoena, order, or other form oflegal process or request to issue. To the extent consistent with the rules, requirements or requests of any relevant governmental or self- regulatory organization, the Receiving Party shall not produce the requested Confidential Material unless and until a court of competent jurisdiction so directs, except if the Designating Party (a) consents, or (b) fails to timely file a motion to quash or fails to timely notiry the Receiving Party in writing of its intention to contest the production of the Confidential Material prior to the date designated for production of the Confidential Material, in which event the l4 14 of 20 FILED: NASSAU COUNTY CLERK 08/07/2020 02:53 PM INDEX NO. 900010/2019 900044/2020 NYSCEF DOC. NO. 138 18