Preview
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021
EXHIBIT “E”
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021
211 W JeffersonSt.,Syracuse, NY 13202
Tel:315.422.1152 | Fax:
315422.1139
www ccf law.com
COONEY & FEARON, PLLC
ExperienceInnovation
Robert J. Smith, Partner
Chief Executive Officer
rsmith@ccf-law.com
Also Admitted in Texas
June 23, 2021
Greta K. Kolcon, Esq.
Woods Oviatt Gilman LLP
1900 Bausch & Lomb Place
Rochester, New York 14604
Re: Costello, Cooney & Fearon , PLLC v. Bowe
Index No. 03917/2021
Dear Greta:
We are in receipt of your letter dated June 22, 2021. Regarding your proposal to "move
forward"
with an ADR process within the next twenty (20) days, we respectfully decline such
invitation. At this stage, we do not believe that exercise would result in resolution of the dispute
or be worth the expense of engaging a private mediator. However, we remain open to and will
consider in good faith any further settlement proposals from Melinda you would like to make on
her behalf.
Upon review of Defendant's Answer with Counterclaims, and in my discussions with you
and Katie Centolella, it appears Melinda is relying on a belief that there is no requirement for
Partners to zero out negative capital accounts, and she was never made aware of any such practice
while at CCF. However, in searching my past e-mails on this issue, not only has it occurred on
numerous occasions, iteven happened in early 2020, when 2019 capital account balance were
calculated, and she was included in an e-mail to the Partnership noting that those with negative
capital accounts needed to bring their negative balance back to zero. I am enclosing a copy of that
e-mail. You might want to discuss this with Melinda, given how adamant she has been on this
point.
Concerning Defendant's discovery requests served last week, Defendant seeks a variety of
confidential and proprietary information, including but not limited to CCF's Operating Agreement,
Defendant's Of Counsel Agreement, and CCF's financial and tax information. Prior to disclosure
of such business information, we would request Defendant enter into a Confidentiality Stipulation
and Order which would preclude the dissemination of such information or use for non-
any
litigation purpose by either party. For your convenience, I enclose a proposed Confidentiality
Stipulation and Order. We would request that you advise no later than Monday, June 28, 2021 at
12:00 p.m. if Defendant will enter into such agreement. Should you have redlines or other edits
ALBANY OFFICE CAZENOVIA OFFICE
220 Columbia Turnpike| Rensselaer, NY12144 5 Mill
Street| Cazenovia, NY13035
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
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Ms. Greta Kolcon
June 23, 2021
Page 2
to the proposed Stipulated Order, we would request such suggestion be sent sufficiently in advance
of the June 28, 2021 deadline to allow for our consideration of same.
We thank you for your anticipated attention to these matters.
Very truly yours,
COSTELLO,COO EY & F A ,
obert . mi
RJS/ar
Enc.
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STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC
Index No. 003917/2021
Plaintiff,
-vs- ORDER FOR THE
PRODUCTION AND
MELINDA BURDICK BOWE, EXCHANGE OF
CONFIDENTIAL
Defendant. INFORMATION
This matter having come before the Court by stipulation of plaintiff, COSTELLO,
COONEY & FEARON, PLLC, and defendant, MELINDA BURDICK BOWE, (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
"Documents"
merit confidential treatment (hereinafter the or "Testimony").
2. Any Party or, as appropriate, non-party, may designate Documents produced, or
"confidential,"
Testimony given, in connection with this action as 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.
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3. As used herein:
(a) Confidential Information shall mean 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) Producing Party shall mean the parties to this action and any non-parties
producing Confidential Information in connection with depositions, document production or
otherwise, or the Party or non-party asserting the confidentiality privilege, as the case may be.
(c) Receiving Party shall mean the Parties to this action and/or any non-party
receiving Confidential Information in connection with depositions, document production,
subpoenas or otherwise.
4. The Receiving Party may, at any time, notify the Producing Party that the Receiving
Party does not concur in the designation of a document or other material as Confidential
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. If such motion is filed,the documents or
other materials shall be deemed Confidential Information unless and until the Court rules
otherwise. Notwithstanding anything herein to the contrary, the Producing Party bears the burden
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of establishing the propriety of its designation of documents or information as Confidential
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 trialor 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 whom a deposition 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.
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6. Confidential 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 Information is made to an expert witness or
consultant pursuant to paragraph 5(c) hereof, 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. 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 arise for any Party or, as appropriate, non-party, to disclose
Confidential 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.
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"
under the terms hereof. Any deposition witness who is given access to Confidential
Information shall, prior thereto, be provided with a copy of this Stipulation and shall execute a
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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 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, as appropriate, 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 (ii) any
pleading, brief or memorandum which reproduces, paraphrases or discloses Confidential
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Information shall file the document, pleading, brief, or memorandum on the NYSCEF system in
Filing"
redacted form until the Court renders a decision on any motion to seal (the "Redacted . 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, as appropriate, non-party's) filing includes Confidential
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 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 itscorresponding 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 memoranda which reproduce, paraphrase or disclose any materials
which have previously been designated by a party as comprising or containing Confidential
Information shall identify such documents by the production number ascribed to them at the time
of production.
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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 any pleading,
brief or memorandum which reproduces, paraphrases or discloses Confidential 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) filea Redacted Filing with the court; and (iii)transmit the
Redacted Filing and a complete unredacted version of the filing to chambers. Within three (3) days
thereafter, the Producing Party may file a motion to seal such Confidential Information.
(b) If the Producing Party does not file a motion to seal within the aforementioned three (3)
day period, the Party (or, as appropriate, non-party) that seeks to file the Confidential 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, and any pleading, brief or memorandum which reproduces, paraphrases
or discloses such material, shall be filedin 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
INFORMATION"
EXCHANGE OF CONFIDENTIAL 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,
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except by order of the Court or consent of the parties. Violation hereof may be
Court."
regarded as contempt of the
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 produced a that is a the as non-
by Producing Party non-party, Party (or, appropriate,
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 unredacted.
(e) All pleadings, briefs or memoranda which reproduce, paraphrase or disclose any
documents which have previously been designated by a party as comprising or containing
Confidential Information shall identify such documents by the production number ascribed to them
at the time of production.
14. Any person receiving Confidential 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 so as to
prevent unauthorized disclosure.
15. Any document or information that may contain Confidential Information that has
"confidential"
been inadvertently produced without identification as to its 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
"confidential"
identifying the document or information as within a reasonable time following the
discovery that the document or information has been produced without such designation.
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16. Extracts and summaries of Confidential Information shall also be treated as
confidential in accordance with the provisions of this Stipulation.
17. The production or disclosure of Confidential 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. Failure to challenge a Confidential Information designation shall not preclude a
subsequent challenge thereto.
18. This Stipulation is entered into without prejudice to the right of or non-
any Party
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 herein 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 produced or designated and all
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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 ithas undertaken itsbest 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 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 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, 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.
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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 counterparts, which, when fully executed, shall
constitute a single original, and electronic signatures shall be deemed original signatures.
Robert J. Smith
COSTELLO, COONEY & FEARON, PLLC
Attorneys for the Plaintiff
211 West Jefferson Street
Syracuse, New York 13202
Telephone: (315) 422-1152
Dated: , 2021
Greta K. Kolcon
WOODS OVIATT GILMAN LLP
Attorneys for Defendant
1900 Bausch & Lomb Place
Rochester, New York 14604
Telephone: (585) 987-2800
Dated: , 2021
SO ORDERED:
Hon.
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"A"
EXHIBIT
STATE OF NEW YORK
SUPREME COURT_ COUNTY OF ONONDAGA
COSTELLO,COONEY & FEARON,PLLC
Index No. 003917/2021
Plaintiff,
-vs- AGREEMENT WITH
RESPECT TO
MELINDA BURDICK BOWE, CONFIDENTIAL MATERIAL
Defendant.
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
"Stipulation"
Information (the entered in the above-entitled action on
4. I have carefully read and understand the provisions of the Stipulation.
5. I will comply with allof the provisions of the Stipulation.
6. I will hold in confidence, will not disclose to anyone not qualified under the Stipulation,
and will use only for purposes of this action, any Confidential Information that is disclosed to me.
7. I will return allConfidential 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.
8. I hereby submit to the jurisdiction of this court for the purpose of enforcement of the
Stipulation in this action.
Dated:
12
Preview
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 EXHIBIT “E” FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 211 W JeffersonSt.,Syracuse, NY 13202 Tel:315.422.1152 | Fax: 315422.1139 www ccf law.com COONEY & FEARON, PLLC ExperienceInnovation Robert J. Smith, Partner Chief Executive Officer rsmith@ccf-law.com Also Admitted in Texas June 23, 2021 Greta K. Kolcon, Esq. Woods Oviatt Gilman LLP 1900 Bausch & Lomb Place Rochester, New York 14604 Re: Costello, Cooney & Fearon , PLLC v. Bowe Index No. 03917/2021 Dear Greta: We are in receipt of your letter dated June 22, 2021. Regarding your proposal to "move forward" with an ADR process within the next twenty (20) days, we respectfully decline such invitation. At this stage, we do not believe that exercise would result in resolution of the dispute or be worth the expense of engaging a private mediator. However, we remain open to and will consider in good faith any further settlement proposals from Melinda you would like to make on her behalf. Upon review of Defendant's Answer with Counterclaims, and in my discussions with you and Katie Centolella, it appears Melinda is relying on a belief that there is no requirement for Partners to zero out negative capital accounts, and she was never made aware of any such practice while at CCF. However, in searching my past e-mails on this issue, not only has it occurred on numerous occasions, iteven happened in early 2020, when 2019 capital account balance were calculated, and she was included in an e-mail to the Partnership noting that those with negative capital accounts needed to bring their negative balance back to zero. I am enclosing a copy of that e-mail. You might want to discuss this with Melinda, given how adamant she has been on this point. Concerning Defendant's discovery requests served last week, Defendant seeks a variety of confidential and proprietary information, including but not limited to CCF's Operating Agreement, Defendant's Of Counsel Agreement, and CCF's financial and tax information. Prior to disclosure of such business information, we would request Defendant enter into a Confidentiality Stipulation and Order which would preclude the dissemination of such information or use for non- any litigation purpose by either party. For your convenience, I enclose a proposed Confidentiality Stipulation and Order. We would request that you advise no later than Monday, June 28, 2021 at 12:00 p.m. if Defendant will enter into such agreement. Should you have redlines or other edits ALBANY OFFICE CAZENOVIA OFFICE 220 Columbia Turnpike| Rensselaer, NY12144 5 Mill Street| Cazenovia, NY13035 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 Ms. Greta Kolcon June 23, 2021 Page 2 to the proposed Stipulated Order, we would request such suggestion be sent sufficiently in advance of the June 28, 2021 deadline to allow for our consideration of same. We thank you for your anticipated attention to these matters. Very truly yours, COSTELLO,COO EY & F A , obert . mi RJS/ar Enc. FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC Index No. 003917/2021 Plaintiff, -vs- ORDER FOR THE PRODUCTION AND MELINDA BURDICK BOWE, EXCHANGE OF CONFIDENTIAL Defendant. INFORMATION This matter having come before the Court by stipulation of plaintiff, COSTELLO, COONEY & FEARON, PLLC, and defendant, MELINDA BURDICK BOWE, (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 "Documents" merit confidential treatment (hereinafter the or "Testimony"). 2. Any Party or, as appropriate, non-party, may designate Documents produced, or "confidential," Testimony given, in connection with this action as 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. FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 3. As used herein: (a) Confidential Information shall mean 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) Producing Party shall mean the parties to this action and any non-parties producing Confidential Information in connection with depositions, document production or otherwise, or the Party or non-party asserting the confidentiality privilege, as the case may be. (c) Receiving Party shall mean the Parties to this action and/or any non-party receiving Confidential Information in connection with depositions, document production, subpoenas or otherwise. 4. The Receiving Party may, at any time, notify the Producing Party that the Receiving Party does not concur in the designation of a document or other material as Confidential 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. If such motion is filed,the documents or other materials shall be deemed Confidential Information unless and until the Court rules otherwise. Notwithstanding anything herein to the contrary, the Producing Party bears the burden FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 of establishing the propriety of its designation of documents or information as Confidential 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 trialor 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 whom a deposition 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. 3 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 6. Confidential 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 Information is made to an expert witness or consultant pursuant to paragraph 5(c) hereof, 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. 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 arise for any Party or, as appropriate, non-party, to disclose Confidential 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. 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" under the terms hereof. Any deposition witness who is given access to Confidential Information shall, prior thereto, be provided with a copy of this Stipulation and shall execute a 4 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 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 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, as appropriate, 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 (ii) any pleading, brief or memorandum which reproduces, paraphrases or discloses Confidential 5 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 Information shall file the document, pleading, brief, or memorandum on the NYSCEF system in Filing" redacted form until the Court renders a decision on any motion to seal (the "Redacted . 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, as appropriate, non-party's) filing includes Confidential 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 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 itscorresponding 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 memoranda which reproduce, paraphrase or disclose any materials which have previously been designated by a party as comprising or containing Confidential Information shall identify such documents by the production number ascribed to them at the time of production. 6 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 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 any pleading, brief or memorandum which reproduces, paraphrases or discloses Confidential 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) filea Redacted Filing with the court; and (iii)transmit the Redacted Filing and a complete unredacted version of the filing to chambers. Within three (3) days thereafter, the Producing Party may file a motion to seal such Confidential Information. (b) If the Producing Party does not file a motion to seal within the aforementioned three (3) day period, the Party (or, as appropriate, non-party) that seeks to file the Confidential 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, and any pleading, brief or memorandum which reproduces, paraphrases or discloses such material, shall be filedin 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 INFORMATION" EXCHANGE OF CONFIDENTIAL 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, 7 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 except by order of the Court or consent of the parties. Violation hereof may be Court." regarded as contempt of the 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 produced a that is a the as non- by Producing Party non-party, Party (or, appropriate, 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 unredacted. (e) All pleadings, briefs or memoranda which reproduce, paraphrase or disclose any documents which have previously been designated by a party as comprising or containing Confidential Information shall identify such documents by the production number ascribed to them at the time of production. 14. Any person receiving Confidential 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 so as to prevent unauthorized disclosure. 15. Any document or information that may contain Confidential Information that has "confidential" been inadvertently produced without identification as to its 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 "confidential" identifying the document or information as within a reasonable time following the discovery that the document or information has been produced without such designation. 8 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 16. Extracts and summaries of Confidential Information shall also be treated as confidential in accordance with the provisions of this Stipulation. 17. The production or disclosure of Confidential 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. Failure to challenge a Confidential Information designation shall not preclude a subsequent challenge thereto. 18. This Stipulation is entered into without prejudice to the right of or non- any Party 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 herein 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 produced or designated and all 9 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 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 ithas undertaken itsbest 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 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 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, 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. 10 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 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 counterparts, which, when fully executed, shall constitute a single original, and electronic signatures shall be deemed original signatures. Robert J. Smith COSTELLO, COONEY & FEARON, PLLC Attorneys for the Plaintiff 211 West Jefferson Street Syracuse, New York 13202 Telephone: (315) 422-1152 Dated: , 2021 Greta K. Kolcon WOODS OVIATT GILMAN LLP Attorneys for Defendant 1900 Bausch & Lomb Place Rochester, New York 14604 Telephone: (585) 987-2800 Dated: , 2021 SO ORDERED: Hon. 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/28/2021 "A" EXHIBIT STATE OF NEW YORK SUPREME COURT_ COUNTY OF ONONDAGA COSTELLO,COONEY & FEARON,PLLC Index No. 003917/2021 Plaintiff, -vs- AGREEMENT WITH RESPECT TO MELINDA BURDICK BOWE, CONFIDENTIAL MATERIAL Defendant. 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 "Stipulation" Information (the entered in the above-entitled action on 4. I have carefully read and understand the provisions of the Stipulation. 5. I will comply with allof the provisions of the Stipulation. 6. I will hold in confidence, will not disclose to anyone not qualified under the Stipulation, and will use only for purposes of this action, any Confidential Information that is disclosed to me. 7. I will return allConfidential 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. 8. I hereby submit to the jurisdiction of this court for the purpose of enforcement of the Stipulation in this action. Dated: 12