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FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ZURICH AMERICAN INSURANCE COMPANY, Index No.: 652336/2018
(IAS Part 59, James, J.S.C.)
Plaintiff,
STIPULATION AND
- against - ORDER FOR THE
FIRST SPECIALTY INSURANCE CORPORATION, PRODUCTION AND
WESTERN BEEF RETAIL, INC., and WESTERN BEEF EXCHANGE OF
PROPERTIES, INC, CONFIDENTIAL
INFORMATION
Defendants.
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This matter having come before the Court by stipulation of plaintiff,
Zurich American Insurance Company, and defendants First Specialty Insurance Corporation,
Western Beef Retail, Inc., and Western Beef Properties, Inc. (individually “Party” and
collectively “Parties”) for the entry of a protective order pursuant to CPLR 3103(a), limiting the
review, copying, dissemination and filing of confidential and/or proprietary documents and
information to be produced by either party and their respective counsel or by any non-party in the
course of discovery in this matter to the extent set forth below; and the parties, by, between and
among their respective counsel, having stipulated and agreed to the terms set forth herein, and
good cause having been shown;
IT IS hereby ORDERED that:
1. This Stipulation is being entered into to facilitate the production, exchange and
discovery of documents and information that the Parties and, as appropriate, non-parties, agree
merit confidential treatment (hereinafter the “Documents” or “Testimony”).
2. Any Party or, as appropriate, non-party, may designate Documents produced, or
Testimony given, in connection with this action as “confidential,” either by notation on each page
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of the Document so designated, statement on the record of the deposition, or written advice to the
respective undersigned counsel for the Parties hereto, or by other appropriate means.
3. As used 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 fourteen (14) 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
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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 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 trial or other proceeding herein, are under the supervision or control of such counsel, and who
have been advised by such counsel of their obligations hereunder;
(c) expert witnesses or consultants retained by the Parties or their counsel to
furnish technical or expert services in connection with this action or to give testimony with
respect to the subject matter of this action at the trial of this action or other proceeding herein;
provided, however, that such Confidential Information is furnished, shown or disclosed in
accordance with paragraph 7 hereof;
(d) the Court and court personnel;
(e) an officer before whom a deposition is taken, including stenographic
reporters and any necessary secretarial, clerical or other personnel of such officer;
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(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.
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.
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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 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.
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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
Information shall file the document, pleading, brief, or memorandum on the NYSCEF system in
redacted form until the Court renders a decision on any motion to seal (the “Redacted Filing”).
If the Producing Party fails to move to seal within seven (7) days of the Redacted Filing, the
Party (or, as appropriate, non-party) making the filing shall take steps to replace the Redacted
Filing with its corresponding unredacted version.
(b) In the event that the Party’s (or, 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 its
corresponding unredacted version.
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(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.
13. 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.
14. Any document or information that may contain Confidential
Information that has been inadvertently produced without identification as to its
“confidential” nature as provided in paragraphs 2 and/or 11 of this Stipulation, may be so
designated by the party asserting the confidentiality privilege by written notice to the
undersigned counsel for the Receiving Party identifying the document or information as
“confidential” within a reasonable time following the discovery that the document or
information has been produced without such designation.
15. Extracts and summaries of Confidential Information shall also be
treated as confidential in accordance with the provisions of this Stipulation.
16. 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
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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.
17. This Stipulation is entered into without prejudice to the right of any
Party or non-party to seek relief from, or modification of, this Stipulation or any provisions
thereof by properly noticed motion to the Court or to challenge any designation of
confidentiality as inappropriate under the Civil Practice Law and Rules or other applicable
law.
18. This Stipulation shall continue to be binding after the conclusion of
this litigation except that (a) 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.
19. 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.
20. Notwithstanding anything to the contrary, the parties are not precluded
under this Agreement from maintaining Confidential Information to effect reinsurance
recoveries or to comply with applicable law or the requirements of any regulatory body, so
long as the parties maintain such Confidential Information subject to the restrictions and
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protections of this Agreement. 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 reproductions thereof shall be returned to the Producing Party or, at the
Receiving Party’s option, shall be destroyed. In the event that any Receiving Party chooses
to destroy physical objects and documents, such Party shall certify in writing within sixty
(60) days of the final termination of this litigation that it has undertaken its best efforts to
destroy such physical objects and documents, and that such physical objects and documents
have been destroyed to the best of its knowledge. Notwithstanding anything to the contrary:
(a)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; and (b) the parties, their Personnel, reinsurers, accountants,
auditors, regulators, and outside counsel are not required to return or destroy Confidential
Information stored in backup or archival storage on internal data systems, provided that such
information shall remain subject to the terms of this Agreement. 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.
21. 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
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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.
22. 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.
23. This Stipulation may be signed in counterparts, which, when fully
executed, shall constitute a single original, and electronic signatures shall be deemed
original signatures.
Dated: New York, New York
August 25, 2020
Nicoletti Hornig & Sweeney Coughlin Duffy LLP
Attorneys for Defendants Western Attorneys for Plaintiff
Beef Retail. Inc. and Western Zurich American Insurance
Beef Properties, Inc. Company
By: _/s/ Walter Kretz_________________ By: _/s/ Gabriel Darwick_______
Walter A. Kretz, Jr. Gabriel Darwick
Wall Street Plaza Wall Street Plaza
88 Pine Street, 7th Floor 88 Pine Street, 28th Floor
New York, NY 10005 New York, NY 10005
(212) 220-3841 (212) 612-4989
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Vigorito Barker Patterson Nicholes & Porter LLP
Attorneys for Defendant First
Specialty Insurance Corporation
/s/ Gregg D. Weinstock_____
Gregg D. Weinstock
300 Garden City Plaza, Suite 308
Garden City, NY 11530
(516) 282-3355
SO ORDERED
_________________________________
J.S.C.
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EXHIBIT “A”
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
--------------------------------------------------------------------- X
, : Index No.
Plaintiff, : AGREEMENT WITH
RESPECT TO
- against – : CONFIDENTIAL
, MATERIAL
:
Defendant. :
--------------------------------------------------------------------- X
I, , state that:
1. My address is .
2. My present occupation or job description is .
3. I have received a copy of the Stipulation for the Production and Exchange of Confidential
Information (the “Stipulation”) entered in the above-entitled action on
.
4. I have carefully read and understand the provisions of the Stipulation.
5. I will comply with all of 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 all Confidential 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.
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8. I hereby submit to the jurisdiction of this court for the purpose of enforcement of the
Stipulation in this action.
Dated:
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Preview
FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X ZURICH AMERICAN INSURANCE COMPANY, Index No.: 652336/2018 (IAS Part 59, James, J.S.C.) Plaintiff, STIPULATION AND - against - ORDER FOR THE FIRST SPECIALTY INSURANCE CORPORATION, PRODUCTION AND WESTERN BEEF RETAIL, INC., and WESTERN BEEF EXCHANGE OF PROPERTIES, INC, CONFIDENTIAL INFORMATION Defendants. ------------------------------------------------------------------------X This matter having come before the Court by stipulation of plaintiff, Zurich American Insurance Company, and defendants First Specialty Insurance Corporation, Western Beef Retail, Inc., and Western Beef Properties, Inc. (individually “Party” and collectively “Parties”) for the entry of a protective order pursuant to CPLR 3103(a), limiting the review, copying, dissemination and filing of confidential and/or proprietary documents and information to be produced by either party and their respective counsel or by any non-party in the course of discovery in this matter to the extent set forth below; and the parties, by, between and among their respective counsel, having stipulated and agreed to the terms set forth herein, and good cause having been shown; IT IS hereby ORDERED that: 1. This Stipulation is being entered into to facilitate the production, exchange and discovery of documents and information that the Parties and, as appropriate, non-parties, agree merit confidential treatment (hereinafter the “Documents” or “Testimony”). 2. Any Party or, as appropriate, non-party, may designate Documents produced, or Testimony given, in connection with this action as “confidential,” either by notation on each page [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 of the Document so designated, statement on the record of the deposition, or written advice to the respective undersigned counsel for the Parties hereto, or by other appropriate means. 3. As used 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 fourteen (14) 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 2 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 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 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 trial or other proceeding herein, are under the supervision or control of such counsel, and who have been advised by such counsel of their obligations hereunder; (c) expert witnesses or consultants retained by the Parties or their counsel to furnish technical or expert services in connection with this action or to give testimony with respect to the subject matter of this action at the trial of this action or other proceeding herein; provided, however, that such Confidential Information is furnished, shown or disclosed in accordance with paragraph 7 hereof; (d) the Court and court personnel; (e) an officer before whom a deposition is taken, including stenographic reporters and any necessary secretarial, clerical or other personnel of such officer; 3 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 (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. 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. 4 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 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 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. 5 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 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 Information shall file the document, pleading, brief, or memorandum on the NYSCEF system in redacted form until the Court renders a decision on any motion to seal (the “Redacted Filing”). If the Producing Party fails to move to seal within seven (7) days of the Redacted Filing, the Party (or, as appropriate, non-party) making the filing shall take steps to replace the Redacted Filing with its corresponding unredacted version. (b) In the event that the Party’s (or, 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 its corresponding unredacted version. 6 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 (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. 13. 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. 14. Any document or information that may contain Confidential Information that has been inadvertently produced without identification as to its “confidential” nature as provided in paragraphs 2 and/or 11 of this Stipulation, may be so designated by the party asserting the confidentiality privilege by written notice to the undersigned counsel for the Receiving Party identifying the document or information as “confidential” within a reasonable time following the discovery that the document or information has been produced without such designation. 15. Extracts and summaries of Confidential Information shall also be treated as confidential in accordance with the provisions of this Stipulation. 16. 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 7 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 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. 17. This Stipulation is entered into without prejudice to the right of any Party or non-party to seek relief from, or modification of, this Stipulation or any provisions thereof by properly noticed motion to the Court or to challenge any designation of confidentiality as inappropriate under the Civil Practice Law and Rules or other applicable law. 18. This Stipulation shall continue to be binding after the conclusion of this litigation except that (a) 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. 19. 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. 20. Notwithstanding anything to the contrary, the parties are not precluded under this Agreement from maintaining Confidential Information to effect reinsurance recoveries or to comply with applicable law or the requirements of any regulatory body, so long as the parties maintain such Confidential Information subject to the restrictions and 8 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 protections of this Agreement. 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 reproductions thereof shall be returned to the Producing Party or, at the Receiving Party’s option, shall be destroyed. In the event that any Receiving Party chooses to destroy physical objects and documents, such Party shall certify in writing within sixty (60) days of the final termination of this litigation that it has undertaken its best efforts to destroy such physical objects and documents, and that such physical objects and documents have been destroyed to the best of its knowledge. Notwithstanding anything to the contrary: (a)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; and (b) the parties, their Personnel, reinsurers, accountants, auditors, regulators, and outside counsel are not required to return or destroy Confidential Information stored in backup or archival storage on internal data systems, provided that such information shall remain subject to the terms of this Agreement. 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. 21. 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 9 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 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. 22. 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. 23. This Stipulation may be signed in counterparts, which, when fully executed, shall constitute a single original, and electronic signatures shall be deemed original signatures. Dated: New York, New York August 25, 2020 Nicoletti Hornig & Sweeney Coughlin Duffy LLP Attorneys for Defendants Western Attorneys for Plaintiff Beef Retail. Inc. and Western Zurich American Insurance Beef Properties, Inc. Company By: _/s/ Walter Kretz_________________ By: _/s/ Gabriel Darwick_______ Walter A. Kretz, Jr. Gabriel Darwick Wall Street Plaza Wall Street Plaza 88 Pine Street, 7th Floor 88 Pine Street, 28th Floor New York, NY 10005 New York, NY 10005 (212) 220-3841 (212) 612-4989 10 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 Vigorito Barker Patterson Nicholes & Porter LLP Attorneys for Defendant First Specialty Insurance Corporation /s/ Gregg D. Weinstock_____ Gregg D. Weinstock 300 Garden City Plaza, Suite 308 Garden City, NY 11530 (516) 282-3355 SO ORDERED _________________________________ J.S.C. 11 [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 EXHIBIT “A” SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF --------------------------------------------------------------------- X , : Index No. Plaintiff, : AGREEMENT WITH RESPECT TO - against – : CONFIDENTIAL , MATERIAL : Defendant. : --------------------------------------------------------------------- X I, , state that: 1. My address is . 2. My present occupation or job description is . 3. I have received a copy of the Stipulation for the Production and Exchange of Confidential Information (the “Stipulation”) entered in the above-entitled action on . 4. I have carefully read and understand the provisions of the Stipulation. 5. I will comply with all of 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 all Confidential 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. [UCS rev. 6/2016] FILED: NEW YORK COUNTY CLERK 08/25/2020 04:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 08/25/2020 8. I hereby submit to the jurisdiction of this court for the purpose of enforcement of the Stipulation in this action. Dated: [UCS rev. 6/2016]