Preview
FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023
NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
_________________________________________________
PENNSYLVANIA GAS HOLDINGS CORPORATION, NOTICE OF ENTRY
EMPIRE PIPELINE, INC., NATIONAL FUEL GAS (NYSCEF)
DISTRIBUTION CORPORATION, NATIONAL FUEL
GAS MIDSTREAM COMPANY, LLC, and Index No.: 816296/2023
NATIONAL FUEL GAS SUPPLY CORPORATION,
Plaintiffs,
v.
EVAN CRAHEN, BETHANY CRAHEN, JESSE
BURNS, ROBIN SZYPROWSKI, RIBET SUPPLY,
RIBET PRODUCTS, INC., HANNA BURKHART, and
JPKM SUPPLY SOLUTIONS LLC,
Defendants.
_________________________________________________
PLEASE TAKE NOTICE that a Stipulation and Order for the Production
and Exchange of Confidential Information (NYSCEF Doc. No. 121), a copy of which is
attached, was so ordered by Hon. Emilio Colaiacovo, J.S.C. on March 15, 2024, and duly
entered in the Office of the Clerk of the County of Erie through NYSCEF on March 15,
2024.
Dated: Buffalo, New York PHILLIPS LYTLE LLP
March 18, 2024
By: /s/ John G. Schmidt Jr.
John G. Schmidt Jr.
Tristan D. Hujer
Nicholas C. Roberts
Trent J. Citarella
Attorneys for Plaintiffs
One Canalside
125 Main Street
Buffalo, New York 14203-2887
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Telephone No. (716) 847-8400
jschmidt@phillipslytle.com
thujer@phillipslytle.com
nroberts@phillipslytle.com
tcitarella@phillipslytle.com
TO: Barry Covert
Anthony Faraco
Lipsitz Green Scime Cambria LLP
42 Delaware Ave.
Buffalo, New York 14202
Telephone No. (716) 849-1333
bcovert@lglaw.com
afaraco@lglaw.com
Aaron Knights
Jacob Honan
Rupp Pfalzgraf LLC
Liberty Building
1600 Liberty Building
Buffalo, New York 14202
Telephone: (716) 854-3400
knights@rupppfalzgraf.com
honan@rupppfalzgraf.com
B. Kevin Burke, Jr.
Kevin R. Lelonek
Gross Shuman P.C.
465 Main Street, Suite 600
Buffalo, New York 14203
Tel: (716) 854-4300
kburke@gross-shuman.com
klelonek@gross-shuman.com
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NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024
FILED: ERIE COUNTY CLERK 03/15/2024 02:49 PM INDEX NO. 816296/2023
NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 03/15/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
PENNSYLVANIA GAS HOLDINGS
CORPORATION, EMPIRE PIPELINE, INC., STIPULATION AND
NATIONAL FUEL GAS DISTRIBUTION ORDER FOR THE
CORPORATION, NATIONAL FUEL GAS PRODUCTION AND
MIDSTREAM COMPANY, LLC, and NATIONAL EXCHANGE OF
FUEL GAS SUPPLY CORPORATION, CONFIDENTIAL
INFORMATION
Plaintiffs,
Index No. 816296/2023
v.
Hon. Emilio Colaiacovo,
EVAN CRAHEN, BETHANY CRAHEN, JESSE J.S.C.
BURNS, ROBIN SZYPROWSKI, RIBET SUPPLY,
RIBET PRODUCTS, INC., HANNA BURKHART, and
JPKM SUPPLY SOLUTIONS LLC,
Defendants.
CONFIDENTIALITY STIPULATION & ORDER
The parties and their counsel ("Parties"), having taken into consideration the
public interest and public policy factors associated with a Confidentiality Stipulation and
Order in this litigation, Pennsylvania Gas Holdings Corp., et al. v. Evan Crahen, et al., Supreme
Court of the State of New York, Erie County Index No. 816296/2023 (the "Litigation"),
and for good cause, stipulate and agree, subject to approval by the Court, as follows:
"CONFIDENTIAL"
I. material is defined herein as sensitive,
confidential, commercial, proprietary, trade-secret, or privileged information or matter.
2. In complying with discovery demands in this Litigation, any person or
entity producing documents or information (the "Producing Party") may designate as
"CONFIDENTIAL"
information or material disclosed, produced, or submitted in the
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course of this Litigation. Such designation shall be made in the manner hereinafter set
forth, or by written agreement of the Parties at any time.
3. All or any part of a document or a tangible item disclosed, produced or
"CONFIDENTIAL"
submitted by the Producing Party may be designated as by marking
MATERIAL" "CONFIDENTIAL"
the words "CONFIDENTIAL or (hereinafter, the
"Confidential Material Designation"): (a) on the face of the original of the document and
each page so designated, or on the face of the photocopy of the document delivered by the
Producing Party to the Party or person to which the document is produced, and on the
photocopies of each page so designated; or (b) in the case of a tangible item, on the face of
the tangible item, if practicable, or by delivering to the Party to which disclosure is made, at
the time of filing, disclosure, or production, written notice that such tangible item is
"CONFIDENTIAL."
"CONFIDENTIAL"
4. material and/or information derived from
"CONFIDENTIAL"
material, may be disclosed in a deposition or at the trial in this
Litigation, but the Party or person disclosing it shall so advise the reporter. The Parties may
"CONFIDENTIAL"
designate any deposition taken or any portion thereof as by advising
the reporter and all Parties of such fact during the deposition or within 30 days after the
deposition transcript is available.
"CONFIDENTIAL"
5. Material designated as and any information
"CONFIDENTIAL"
derived from material shall be used or disclosed solely in this
Litigation and in accordance with the provisions of this Confidentiality Stipulation and
"CONFIDENTIAL"
Order, and such material, as well as any information derived from
"CONFIDENTIAL" other
such material, shall not be used in any other litigation or for any
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purpose without further order of this Court, except as set forth below or as the Producing
Parties may agree.
6. Other than the Parties, Court personnel (including court reporters),
jurors impaneled by the Court in this matter, commercial photocopying firms, and subject to
"CONFIDENTIAL"
Paragraph 7, access to material or any information derived from
"CONFIDENTIAL"
material shall be limited to the following persons:
a. A Party's directors, officers, employees, and agents in
connection with the prosecution, defense, or supervision of the
Litigation;
b. A Party's insurers and outside or in-house auditors;
c. Counsel of record for the respective Parties in the Litigation
and employees of such counsel provided, however, that access
by counsel of record and employees of such counsel to
"CONFIDENTIAL"
material, or any information derived
"CONFIDENTIAL"
from material, shall be for the sole
purpose of conducting the prosecution, defense, or supervision
of the Litigation;
d. Other counsel for the respective Parties in the Litigation and
their employees who are assisting in the prosecution or defense
of the Litigation, provided, however, that access by other
"CONFIDENTIAL"
counsel to material, or any information
"CONFIDENTIAL"
derived from material, shall be for the
sole purpose of conducting the prosecution, defense, or
supervision of the Litigation; ,
e. Experts and consultants (including independent experts and
private investigators) who are employed, retained or otherwise
consulted by counsel or a Party for the purpose of analyzing
data, conducting studies, or providing opinions to assist, in any
way, in the prosecution or defense of the Litigation;
f. an ofEcer before whom a deposition is taken, including
stenographic reporters and any necessary secretarial, clerical, or
other personnel of such officer;
g. trial and deposition witnesses in the Litigation, provided that
any such witness is first provided a copy of this Confidentiality
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Stipulation and Order, and the witness states under oath that he
or she has read this Confidentiality Stipulation and Order and
agrees to be bound by it; and
h. Employees or representatives of any government agency in
connection with any governmental or regulatory matter.
7. Counsel of record shall inform each person to whom they give access
"CONFIDENTIAL" "CONFIDENTIAL"
to material, or any information derived fmm
material, of the terms of this Confidentiality Stipulation and Order as well as the obligation
to comply with those terms. Each expert, consultant or other counsel who is given access to
"CONFIDENTIAL" "CONFIDENTIAL"
material, or any information derived from
material, shall also sign a copy of the Commitment of Qualified Recipient Pursuant to
Confidentiality Stipulation and Order (the "Commitment"). All copies of the signed
Commitment shall be held in the sole possession of the Party retaining such expert,
consultant or other counsel. The Commitment shall be considered work-product material
which is privileged.
8. Under no circumstances shall a person who is not permitted access to
"CONFIDENTIAL"
material under Paragraph 6, or who is required to but has not signed a
copy of the Commitment described in Paragraph 7, be permitted to attend a deposition (or
"CONFIDENTIAL"
any portion thereof) at which material or any information derived
"CONFIDENTIAL"
from material is discussed or otherwise disclosed.
"CONFIDENTIAL"
9. material, or any information derived from
"CONFIDENTIAL"
material, may be disclosed to the Court in connection with any filing
or proceeding in this Litigation, but the Party or person disclosing it shall cause the
"CONFIDENTIAL" "CONFIDENTIAL"
material, or information derived from material,
to be submitted under seal to the Court. The Party using such information or material shall
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"CONFIDENTIAL"
request that the proceeding (or portion thereof) where material is used
shall be in camera and that any transcript of the proceeding (or portion thereof) be
maintained under seal and in camera, with access limited to persons entitled to access under
this Confidentiality Stipulation and Order.
10. Within thirty (30) days of the entry of this Order, the Parties may
"CONFIDENTIAL"
designate as any documents or information produced by a Producing
Party prior to the entry of this Order. Nothing in this Order shall be construed in any way
to contml the use, dissemination, publication or disposition by a Party or person of
documents or information received at any time by that Party or person outside the course of
the discovery process in this Litigation.
11. The Parties agree that the failure by any Producing Party to designate
"CONFIDENTIAL"
any document, material or information as either or
"CONFIDENTIAL"
material in accordance with this Confidentiality Stipulation and Order
shall not constitute a waiver in whole or in part or be used as grounds for estoppel in
connection with that Producing Party's designation of such information or documents as
confidential in any other proceeding or action. If material is appropriately designated as
"CONFIDENTIAL"
after the material was initially produced, the receiving party, on
timely notice of the designation, must make reasonable efforts to assure that the material is
treated in accordance with the provisions of this Confidentiality Stipulation and Order.
12. Nothing in this Confidentiality Stipulation and Order shall be
"CONFIDENTIAL"
construed in any way as a finding that material designated as material
does or does not constitute or contain sensitive, confidential, commercial, proprietary, or
privileged information or matter. Any Party or person may object, in writing, to the
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designation by another Party or person of any information or material as
"CONFIDENTIAL"
material. If the Parties are unable to resolve their dispute in good
faith on an informal basis, within 14 days of the day that the Parties reach an impasse the
objecting Party shall, by motion, apply to the Court for a determination of whether the
designated material
"CONFIDENTIAL"
is entitled to the protection of this Order as
"CONFIDENTIAL"
material. All material designated by any Producing Party shall be
"CONFIDENTIAL"
entitled to protection as material consistent with the terms of this
Confidentiality Stipulation and Order until the Parties agree or the Court determines
otherwise.
13. Inadvertent or mistaken production of documents subject to work-
product or attorney-client privilege, or other legal privilege protecting information from
discovery, shall not constitute a waiver of the privilege, provided that the Producing Party
shall notify the receiving Party in writing as set forth herein. In the event that a Party
inadvertently or mistakenly produces documents subject to a claim of privilege
("Inadvertently Produced Documents"), the Producing Party shall, within 10 days of the
discovery of the inadvertent or mistaken disclosure, notify the other Party in writing of the
inadvertent or mistaken disclosure. The Producing Party may, in the notice, request a
"clawback"
of the Inadvertently Produced Documents. The Party receiving such clawback
notice shall immediately and diligently act to retrieve the Inadvertently Produced
Documents, and all copies, including any loaded to databases, and return them to the
producing Party or destroy them as agreed between the Parties. All notes or other work
product of the receiving Party reflecting the contents of Inadvertently Produced Documents
shall be destroyed to the extent practicable.
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14. A Party receiving Inadvertently Produced Documents may, after
receipt of the Producing Party's notice of inadvertent or mistaken production, move the
Court to dispute the claim of privilege. If the receiving Party elects to file such a motion, the
receiving Party may retain possession of the Inadvertently Produced Documents as well as
any notes or other work product of the receiving Party reflecting the contents of such
materials pending the resolution by the Court of such motion, but shall segregate and not
use such materials pending resolution of the motion. If the receiving Party's motion is
denied, the receiving Party shall promptly return or destroy the Inadvertently Produced
Documents and all copies. No use shall be made of such Inadvertently Produced
Documents during depositions or at trial; nor shall they be disclosed to anyone who was not
given access to them prior to the request to return or destroy them unless otherwise ordered
by the Court.
15. This Confidentiality Stipulation and Order and the agreements
embodied herein shall survive the resolution of this Litigation and continue in full force and
effect.
16. Upon termination of this Litigation by judgment, and the expiration of
any and all appeals therefrom, or by settlement, all Parties shall return to counsel for such
"CONFIDENTIAL"
Producing Party or person all material received flum such Party or
person including all copies, prints and other
Preview
FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE _________________________________________________ PENNSYLVANIA GAS HOLDINGS CORPORATION, NOTICE OF ENTRY EMPIRE PIPELINE, INC., NATIONAL FUEL GAS (NYSCEF) DISTRIBUTION CORPORATION, NATIONAL FUEL GAS MIDSTREAM COMPANY, LLC, and Index No.: 816296/2023 NATIONAL FUEL GAS SUPPLY CORPORATION, Plaintiffs, v. EVAN CRAHEN, BETHANY CRAHEN, JESSE BURNS, ROBIN SZYPROWSKI, RIBET SUPPLY, RIBET PRODUCTS, INC., HANNA BURKHART, and JPKM SUPPLY SOLUTIONS LLC, Defendants. _________________________________________________ PLEASE TAKE NOTICE that a Stipulation and Order for the Production and Exchange of Confidential Information (NYSCEF Doc. No. 121), a copy of which is attached, was so ordered by Hon. Emilio Colaiacovo, J.S.C. on March 15, 2024, and duly entered in the Office of the Clerk of the County of Erie through NYSCEF on March 15, 2024. Dated: Buffalo, New York PHILLIPS LYTLE LLP March 18, 2024 By: /s/ John G. Schmidt Jr. John G. Schmidt Jr. Tristan D. Hujer Nicholas C. Roberts Trent J. Citarella Attorneys for Plaintiffs One Canalside 125 Main Street Buffalo, New York 14203-2887 1 of 13 FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024 Telephone No. (716) 847-8400 jschmidt@phillipslytle.com thujer@phillipslytle.com nroberts@phillipslytle.com tcitarella@phillipslytle.com TO: Barry Covert Anthony Faraco Lipsitz Green Scime Cambria LLP 42 Delaware Ave. Buffalo, New York 14202 Telephone No. (716) 849-1333 bcovert@lglaw.com afaraco@lglaw.com Aaron Knights Jacob Honan Rupp Pfalzgraf LLC Liberty Building 1600 Liberty Building Buffalo, New York 14202 Telephone: (716) 854-3400 knights@rupppfalzgraf.com honan@rupppfalzgraf.com B. Kevin Burke, Jr. Kevin R. Lelonek Gross Shuman P.C. 465 Main Street, Suite 600 Buffalo, New York 14203 Tel: (716) 854-4300 kburke@gross-shuman.com klelonek@gross-shuman.com -2- 2 of 13 FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024 FILED: ERIE COUNTY CLERK 03/15/2024 02:49 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 03/15/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE PENNSYLVANIA GAS HOLDINGS CORPORATION, EMPIRE PIPELINE, INC., STIPULATION AND NATIONAL FUEL GAS DISTRIBUTION ORDER FOR THE CORPORATION, NATIONAL FUEL GAS PRODUCTION AND MIDSTREAM COMPANY, LLC, and NATIONAL EXCHANGE OF FUEL GAS SUPPLY CORPORATION, CONFIDENTIAL INFORMATION Plaintiffs, Index No. 816296/2023 v. Hon. Emilio Colaiacovo, EVAN CRAHEN, BETHANY CRAHEN, JESSE J.S.C. BURNS, ROBIN SZYPROWSKI, RIBET SUPPLY, RIBET PRODUCTS, INC., HANNA BURKHART, and JPKM SUPPLY SOLUTIONS LLC, Defendants. CONFIDENTIALITY STIPULATION & ORDER The parties and their counsel ("Parties"), having taken into consideration the public interest and public policy factors associated with a Confidentiality Stipulation and Order in this litigation, Pennsylvania Gas Holdings Corp., et al. v. Evan Crahen, et al., Supreme Court of the State of New York, Erie County Index No. 816296/2023 (the "Litigation"), and for good cause, stipulate and agree, subject to approval by the Court, as follows: "CONFIDENTIAL" I. material is defined herein as sensitive, confidential, commercial, proprietary, trade-secret, or privileged information or matter. 2. In complying with discovery demands in this Litigation, any person or entity producing documents or information (the "Producing Party") may designate as "CONFIDENTIAL" information or material disclosed, produced, or submitted in the 1 of 11 3 of 13 FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024 FILED: ERIE COUNTY CLERK 03/15/2024 02:49 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 03/15/2024 course of this Litigation. Such designation shall be made in the manner hereinafter set forth, or by written agreement of the Parties at any time. 3. All or any part of a document or a tangible item disclosed, produced or "CONFIDENTIAL" submitted by the Producing Party may be designated as by marking MATERIAL" "CONFIDENTIAL" the words "CONFIDENTIAL or (hereinafter, the "Confidential Material Designation"): (a) on the face of the original of the document and each page so designated, or on the face of the photocopy of the document delivered by the Producing Party to the Party or person to which the document is produced, and on the photocopies of each page so designated; or (b) in the case of a tangible item, on the face of the tangible item, if practicable, or by delivering to the Party to which disclosure is made, at the time of filing, disclosure, or production, written notice that such tangible item is "CONFIDENTIAL." "CONFIDENTIAL" 4. material and/or information derived from "CONFIDENTIAL" material, may be disclosed in a deposition or at the trial in this Litigation, but the Party or person disclosing it shall so advise the reporter. The Parties may "CONFIDENTIAL" designate any deposition taken or any portion thereof as by advising the reporter and all Parties of such fact during the deposition or within 30 days after the deposition transcript is available. "CONFIDENTIAL" 5. Material designated as and any information "CONFIDENTIAL" derived from material shall be used or disclosed solely in this Litigation and in accordance with the provisions of this Confidentiality Stipulation and "CONFIDENTIAL" Order, and such material, as well as any information derived from "CONFIDENTIAL" other such material, shall not be used in any other litigation or for any - 2 - 2 of 11 4 of 13 FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024 FILED: ERIE COUNTY CLERK 03/15/2024 02:49 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 03/15/2024 purpose without further order of this Court, except as set forth below or as the Producing Parties may agree. 6. Other than the Parties, Court personnel (including court reporters), jurors impaneled by the Court in this matter, commercial photocopying firms, and subject to "CONFIDENTIAL" Paragraph 7, access to material or any information derived from "CONFIDENTIAL" material shall be limited to the following persons: a. A Party's directors, officers, employees, and agents in connection with the prosecution, defense, or supervision of the Litigation; b. A Party's insurers and outside or in-house auditors; c. Counsel of record for the respective Parties in the Litigation and employees of such counsel provided, however, that access by counsel of record and employees of such counsel to "CONFIDENTIAL" material, or any information derived "CONFIDENTIAL" from material, shall be for the sole purpose of conducting the prosecution, defense, or supervision of the Litigation; d. Other counsel for the respective Parties in the Litigation and their employees who are assisting in the prosecution or defense of the Litigation, provided, however, that access by other "CONFIDENTIAL" counsel to material, or any information "CONFIDENTIAL" derived from material, shall be for the sole purpose of conducting the prosecution, defense, or supervision of the Litigation; , e. Experts and consultants (including independent experts and private investigators) who are employed, retained or otherwise consulted by counsel or a Party for the purpose of analyzing data, conducting studies, or providing opinions to assist, in any way, in the prosecution or defense of the Litigation; f. an ofEcer before whom a deposition is taken, including stenographic reporters and any necessary secretarial, clerical, or other personnel of such officer; g. trial and deposition witnesses in the Litigation, provided that any such witness is first provided a copy of this Confidentiality - 3.. 3 of 11 5 of 13 FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024 FILED: ERIE COUNTY CLERK 03/15/2024 02:49 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 03/15/2024 Stipulation and Order, and the witness states under oath that he or she has read this Confidentiality Stipulation and Order and agrees to be bound by it; and h. Employees or representatives of any government agency in connection with any governmental or regulatory matter. 7. Counsel of record shall inform each person to whom they give access "CONFIDENTIAL" "CONFIDENTIAL" to material, or any information derived fmm material, of the terms of this Confidentiality Stipulation and Order as well as the obligation to comply with those terms. Each expert, consultant or other counsel who is given access to "CONFIDENTIAL" "CONFIDENTIAL" material, or any information derived from material, shall also sign a copy of the Commitment of Qualified Recipient Pursuant to Confidentiality Stipulation and Order (the "Commitment"). All copies of the signed Commitment shall be held in the sole possession of the Party retaining such expert, consultant or other counsel. The Commitment shall be considered work-product material which is privileged. 8. Under no circumstances shall a person who is not permitted access to "CONFIDENTIAL" material under Paragraph 6, or who is required to but has not signed a copy of the Commitment described in Paragraph 7, be permitted to attend a deposition (or "CONFIDENTIAL" any portion thereof) at which material or any information derived "CONFIDENTIAL" from material is discussed or otherwise disclosed. "CONFIDENTIAL" 9. material, or any information derived from "CONFIDENTIAL" material, may be disclosed to the Court in connection with any filing or proceeding in this Litigation, but the Party or person disclosing it shall cause the "CONFIDENTIAL" "CONFIDENTIAL" material, or information derived from material, to be submitted under seal to the Court. The Party using such information or material shall - 4 - 4 of 11 6 of 13 FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024 FILED: ERIE COUNTY CLERK 03/15/2024 02:49 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 03/15/2024 "CONFIDENTIAL" request that the proceeding (or portion thereof) where material is used shall be in camera and that any transcript of the proceeding (or portion thereof) be maintained under seal and in camera, with access limited to persons entitled to access under this Confidentiality Stipulation and Order. 10. Within thirty (30) days of the entry of this Order, the Parties may "CONFIDENTIAL" designate as any documents or information produced by a Producing Party prior to the entry of this Order. Nothing in this Order shall be construed in any way to contml the use, dissemination, publication or disposition by a Party or person of documents or information received at any time by that Party or person outside the course of the discovery process in this Litigation. 11. The Parties agree that the failure by any Producing Party to designate "CONFIDENTIAL" any document, material or information as either or "CONFIDENTIAL" material in accordance with this Confidentiality Stipulation and Order shall not constitute a waiver in whole or in part or be used as grounds for estoppel in connection with that Producing Party's designation of such information or documents as confidential in any other proceeding or action. If material is appropriately designated as "CONFIDENTIAL" after the material was initially produced, the receiving party, on timely notice of the designation, must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Confidentiality Stipulation and Order. 12. Nothing in this Confidentiality Stipulation and Order shall be "CONFIDENTIAL" construed in any way as a finding that material designated as material does or does not constitute or contain sensitive, confidential, commercial, proprietary, or privileged information or matter. Any Party or person may object, in writing, to the - 5 - 5 of 11 7 of 13 FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024 FILED: ERIE COUNTY CLERK 03/15/2024 02:49 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 03/15/2024 designation by another Party or person of any information or material as "CONFIDENTIAL" material. If the Parties are unable to resolve their dispute in good faith on an informal basis, within 14 days of the day that the Parties reach an impasse the objecting Party shall, by motion, apply to the Court for a determination of whether the designated material "CONFIDENTIAL" is entitled to the protection of this Order as "CONFIDENTIAL" material. All material designated by any Producing Party shall be "CONFIDENTIAL" entitled to protection as material consistent with the terms of this Confidentiality Stipulation and Order until the Parties agree or the Court determines otherwise. 13. Inadvertent or mistaken production of documents subject to work- product or attorney-client privilege, or other legal privilege protecting information from discovery, shall not constitute a waiver of the privilege, provided that the Producing Party shall notify the receiving Party in writing as set forth herein. In the event that a Party inadvertently or mistakenly produces documents subject to a claim of privilege ("Inadvertently Produced Documents"), the Producing Party shall, within 10 days of the discovery of the inadvertent or mistaken disclosure, notify the other Party in writing of the inadvertent or mistaken disclosure. The Producing Party may, in the notice, request a "clawback" of the Inadvertently Produced Documents. The Party receiving such clawback notice shall immediately and diligently act to retrieve the Inadvertently Produced Documents, and all copies, including any loaded to databases, and return them to the producing Party or destroy them as agreed between the Parties. All notes or other work product of the receiving Party reflecting the contents of Inadvertently Produced Documents shall be destroyed to the extent practicable. - 6 - 6 of 11 8 of 13 FILED: ERIE COUNTY CLERK 03/18/2024 12:14 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 03/18/2024 FILED: ERIE COUNTY CLERK 03/15/2024 02:49 PM INDEX NO. 816296/2023 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 03/15/2024 14. A Party receiving Inadvertently Produced Documents may, after receipt of the Producing Party's notice of inadvertent or mistaken production, move the Court to dispute the claim of privilege. If the receiving Party elects to file such a motion, the receiving Party may retain possession of the Inadvertently Produced Documents as well as any notes or other work product of the receiving Party reflecting the contents of such materials pending the resolution by the Court of such motion, but shall segregate and not use such materials pending resolution of the motion. If the receiving Party's motion is denied, the receiving Party shall promptly return or destroy the Inadvertently Produced Documents and all copies. No use shall be made of such Inadvertently Produced Documents during depositions or at trial; nor shall they be disclosed to anyone who was not given access to them prior to the request to return or destroy them unless otherwise ordered by the Court. 15. This Confidentiality Stipulation and Order and the agreements embodied herein shall survive the resolution of this Litigation and continue in full force and effect. 16. Upon termination of this Litigation by judgment, and the expiration of any and all appeals therefrom, or by settlement, all Parties shall return to counsel for such "CONFIDENTIAL" Producing Party or person all material received flum such Party or person including all copies, prints and other