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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
. ... .......... - - - -...-.- - - - - - -- --- ---- -- X
DR. STEPHANIE DONIGER, :
Plaintiff, :
: Index No.: 521691/2018
- against - :
:
NEW YORK PRESBYTERIAN BROOKLYN :
METHODIST HOSPITAL, JOSEPH BOVE, And DR. :
CHRISTOPHER KELLY, in their individual :
Capacities. :
Defendant.
--.....-------....--------------------- X
.IOINT CONFIDENTIALITY AGREEMENT AND ORDER
WHEREAS, in the interest of facilitating the just, speedy and inexpensive determination
of the above-captioned matter and in the interest of protecting the legitimate interests of the parties
in maintaining the confidentiality of certain information to be disclosed during the discovery
process;
NOW THEREFORE, IT IS HEREBY AGREED as follows by and between Plaintiff
Dr. Stephanie Doniger and Defendant NewYork-Presbyterian Brooklyn Methodist, Dr. Joseph
Bove and Dr. Christopher Kelly:
Material"
"Confidential shall include documents and communications including, but not
limited to deposition testimony, interrogatory answers, responses to requests for admission,
affidavits and other information identified as such in accordance with the provisions below.
Material"
"Confidential shall be accorded the protections referred to in this Agreement.
"Matter" matter"
or "this shall refer to the above-captioned action and any related
proceedings.
1. Any party may designate as Confidential Material ("the Designating Party") any
document or material which is either produced during discovery proceedings by the Designating
Party and and/or referred to in Court submissions in this matter which constitutes or contains
proprietary, trade secret, sensitive personnel, or sensitive business, operational or financial
information or any extracts or summaries thereof.
2. Acceptance Material"
by any party of material designated as "Confidential shall
not constitute a concession that any such discovery material is appropriately so designated.
3. Documents and other discovery materials may be designated as Confidential
Material as follows: (i) by affixing a legend so indicating to every page of the document at the
time of production; or (ii) by written statement of counsel for the producing party at the time of,
or prior to, production that the document or material is to be treated as Confidential Material; and
(iii) by agreement in writing between the producing and receiving parties at any time.
4. Under no circumstances shall Confidential Material be disclosed to any person or
entity except as expressly permitted in this Agreement. All Confidential Material shall be used
only for the purposes of this matter and shall not be used for any other purpose except upon written
consent of tbe Designating Party or order of the Court, unless the Confidential Material was
obtained independently of the Designating Party. The obligations imposed by this paragraph shall
continue even after the termination of this litigation, unless otherwise ordered by the Court or
agreed in a writing signed by all parties hereto.
5. Confidential Material shall be held in confidence and shall not be revealed,
discussed or disclosed in any manner, in any form, to any person or entity other than:
(a) the Court and jury presiding over this action or any person designated by
the Court in the interest of justice;
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(b) the attorneys for the parties (including in-house counsel for Defendant) and
their respective support staff and/or paralegals working with them on this
matter;
(c) individual parties, any director or officer of any party and any employee of
a party to whom access is required, in the sole discretion of counsel for the
party, for the purposes of this litigation or settlement of this matter. and
(d) witnesses and consultants, including experts, but only to the extent
reasonably deemed necessary by counsel for the prosecution, defense or
settlement of this matter.
6. Prior to any disclosure of Confidential Material to a person or entity referred to in
paragraph 5(d) herein, such person or entity shall: (a) be advised by counsel making such
disclosure that such documents and information shall be kept confidential and may not be disclosed
in any form or used for any purpose whatsoever other than the preparation of this case for trial or
for use at trial; (b) read this Confidentiality Agreement; and (c) sign the Agreement Concerning
Confidential Material. A copy of each such signed Confidentiality Agreement shall be maintained
by counsel making the disclosure, and all copies may be subject to inspection upon application of
opposing counsel for good cause shown.
7. In the event of a dispute between counsel regarding the scope of Confidential
Material, counsel agree to meet promptly to review and attempt to resolve informally issues
centering on Confidential Material. If such meeting fails to resolve any disputes, the parties shall
promptly seek the Court's assistance, it being understood that it is the Designating Party's burden
to sustain its position that Confidential Material should not be shown or disclosed. The parties
hereto consent to empowering the Court with full authority to enforce any and all provisions hereof
and to order such procedures as may be required to protect the confidentiality of any Confidential
Material that is offered and/or entered as evidence in the course of these proceedings or produced
during discovery. Pending the Court's resolution of such issues, such material shall remain
designated as Confidential Material.
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8. The inadvertent or unintentional production of documents or material without a
confidentiality designation shall not be deemed a waiver in whole or in part of a party's claim of
confidential treatment under the terms of this Confidentiality Agreement. A producing party may
notify the receiving party that documents or material that should have been designated Confidential
Material were inadvertently produced without being so designated. Upon receiving such notice
from the producing party, all such documents shall be deemed Confidential Material and
arrangements made to designate such documents as confidential pursuant to paragraph 3 of this
Confidentiality Agreement. The receiving party shall also make all reasonable efforts to retrieve
any copies of such inadvertently produced material from any persons not authorized under
paragraph 5 to receive such material.
9. The inadvertent or unintentional disclosure by any party of documents or material
protected by the attorney-client privilege or work product doctrine or other applicable privilege
will not constitute a waiver of any available privilege or protection by the disclosing party, either
as to the specific information disclosed or as to any other information disclosed or as to any other
information relating thereto on the same or related subject matter. Upon the request of the
producing party, the receiving party will promptly return any attorney-client privileged or work
product protected document or other privileged material and any copies thereof, and destroy all
notes and other materials referring to the attorney-client privileged, work product protected or
other privileged information. No such inadvertently produced attorney-client privileged or work
product protected document or information or other privileged material may be used in evidence
against the producing party.
10. Nothing contained in this Confidentiality Agreement shall affect or restrict the
rights of any party with respect to its own documents. Further, nothing in this Confidentiality
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Agreement shall restrict or limit a party's right or ability to enforce any rights (contractual
statutory or otherwise) respecting confidential information. trade secrets and other proprietary
information.
11. In filing with the Court any pleading, brief or other paper that quotes or contains
Confidential Material, the parties shall follow the individual procedures of the assigned judge and
part, and the following additional rules shall apply:
a. Counsel shall seek permission to file under seal only those specific
documents and only those specific portions of deposition testimony that have been designated as
Confidential Material.
b. To the extent practicable, only the specific portion of a pleading, motion,
memorandum, brief or other paper that quotes or sets forth the substance of Confidential Material
shall be subject to the request to file under seal.
c. Where, in counsel's good faith judgment, the quotation or discussion of
Confidential in a particular motion, memorandum,
Material brief or other paper is so pervasive as
to render compliance with subparagraph b impracticable, counsel are authorized to seek permission
to file the entire motion, memorandum, brief or other paper under seal.
d, The Court shall thereafter determine the treatment of the Confidential
Materials.
12. If Confidential Materials in the possession of any party are responsive to any
subpoena or any other form of compulsory process of the court, or any other administrative,
judicial or legislative body, or if any other persons or tribunal purporting to have authority seek
such information by compulsory process, the party to whom the process or inquiry is directed shall
give written notice within ten business days of receipt of such process or inquiry to the producing
party. The party to whom the process or inquiry is directed shall object to the production of the
Confidential Materials based on the existence of this Agreement.
13. Upon final termination of this matter. a party producing Confidential Material may
request, at its election, either the return or destruction of all such material and of other documents
containing information or data from the Confidential Material, and all copies thereof made by or
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on behalf of the receiving parties, and the receiving parties shall comply with such request unless
otherwise ordered by the Court.
14. Producing or receiving Confidential Material or otherwise complying with the
terms of this Agreement shall not:
(a) Prejudice in any way the rights of any party to object to the production of
documents it considers not subject to discovery, or operate as an admission
by any party that the restrictions and procedures set forth herein constitute
adequate protection for any particular information deemed by any party to
be Confidential Material;
(b) Prejudice in any way the rights of any party to object to the admissibility
into evidence of any document, testimony or the evidence subject to this
Agreement;
(c) Prejudice in any way the rights of any party to seek a determination by the
Court whether any information, documents or material, designated as
Confidential Material should be so designated and subject to the terms of
this Agreement;
(d) Prejudice in any way the rights of any party to petition the Court for a
protective order relating to any purportedly Confidential Material.
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STIPULATED, AGREED AND CONSENTED TO THIS __ DAY OF OCTOBER 2019.
AKIN LAW GROUP, PLLC EPSTEIN BECKER & GREEN, P.C.
By: By:
Rob Sal tan James S. Frank
Zafer A. Akin Brian G. Cesaratto
45 Broadway, Suite 1420 250 Park Avenue
New York, New York 10006 New York, New York 10177
(212) 825-1400 (212) 351-4500
Attorney for Plaintiff Attorneys for Defendant
NewYork-Presbyterian Brooklyn
Methodist, Dr. Joseph Bove, Dr.
Christopher Kelly
So Ordered:
LS.C.
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EXHIBIT A
AGREEMENT CONCERNING CONFIDENTIAL MATERIAL
The undersigned hereby acknowledges that (s)he has been given a copy of and has read the
Order"
"Joint Confidentiality Agreernent and pertaining to the case entitled "Stephanie Doniger v.
New York Presbyterian Brooklyn Methodist Hospital et al, Supreme Court of the State of New
York, County of Brooklyn, Index No.: 521691/2018, understands the terms thereof, and agrees to
be bound by such terms.
Date Signature
Name (print)
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS . ... .......... - - - -...-.- - - - - - -- --- ---- -- X DR. STEPHANIE DONIGER, : Plaintiff, : : Index No.: 521691/2018 - against - : : NEW YORK PRESBYTERIAN BROOKLYN : METHODIST HOSPITAL, JOSEPH BOVE, And DR. : CHRISTOPHER KELLY, in their individual : Capacities. : Defendant. --.....-------....--------------------- X .IOINT CONFIDENTIALITY AGREEMENT AND ORDER WHEREAS, in the interest of facilitating the just, speedy and inexpensive determination of the above-captioned matter and in the interest of protecting the legitimate interests of the parties in maintaining the confidentiality of certain information to be disclosed during the discovery process; NOW THEREFORE, IT IS HEREBY AGREED as follows by and between Plaintiff Dr. Stephanie Doniger and Defendant NewYork-Presbyterian Brooklyn Methodist, Dr. Joseph Bove and Dr. Christopher Kelly: Material" "Confidential shall include documents and communications including, but not limited to deposition testimony, interrogatory answers, responses to requests for admission, affidavits and other information identified as such in accordance with the provisions below. Material" "Confidential shall be accorded the protections referred to in this Agreement. "Matter" matter" or "this shall refer to the above-captioned action and any related proceedings. 1. Any party may designate as Confidential Material ("the Designating Party") any document or material which is either produced during discovery proceedings by the Designating Party and and/or referred to in Court submissions in this matter which constitutes or contains proprietary, trade secret, sensitive personnel, or sensitive business, operational or financial information or any extracts or summaries thereof. 2. Acceptance Material" by any party of material designated as "Confidential shall not constitute a concession that any such discovery material is appropriately so designated. 3. Documents and other discovery materials may be designated as Confidential Material as follows: (i) by affixing a legend so indicating to every page of the document at the time of production; or (ii) by written statement of counsel for the producing party at the time of, or prior to, production that the document or material is to be treated as Confidential Material; and (iii) by agreement in writing between the producing and receiving parties at any time. 4. Under no circumstances shall Confidential Material be disclosed to any person or entity except as expressly permitted in this Agreement. All Confidential Material shall be used only for the purposes of this matter and shall not be used for any other purpose except upon written consent of tbe Designating Party or order of the Court, unless the Confidential Material was obtained independently of the Designating Party. The obligations imposed by this paragraph shall continue even after the termination of this litigation, unless otherwise ordered by the Court or agreed in a writing signed by all parties hereto. 5. Confidential Material shall be held in confidence and shall not be revealed, discussed or disclosed in any manner, in any form, to any person or entity other than: (a) the Court and jury presiding over this action or any person designated by the Court in the interest of justice; 2 (b) the attorneys for the parties (including in-house counsel for Defendant) and their respective support staff and/or paralegals working with them on this matter; (c) individual parties, any director or officer of any party and any employee of a party to whom access is required, in the sole discretion of counsel for the party, for the purposes of this litigation or settlement of this matter. and (d) witnesses and consultants, including experts, but only to the extent reasonably deemed necessary by counsel for the prosecution, defense or settlement of this matter. 6. Prior to any disclosure of Confidential Material to a person or entity referred to in paragraph 5(d) herein, such person or entity shall: (a) be advised by counsel making such disclosure that such documents and information shall be kept confidential and may not be disclosed in any form or used for any purpose whatsoever other than the preparation of this case for trial or for use at trial; (b) read this Confidentiality Agreement; and (c) sign the Agreement Concerning Confidential Material. A copy of each such signed Confidentiality Agreement shall be maintained by counsel making the disclosure, and all copies may be subject to inspection upon application of opposing counsel for good cause shown. 7. In the event of a dispute between counsel regarding the scope of Confidential Material, counsel agree to meet promptly to review and attempt to resolve informally issues centering on Confidential Material. If such meeting fails to resolve any disputes, the parties shall promptly seek the Court's assistance, it being understood that it is the Designating Party's burden to sustain its position that Confidential Material should not be shown or disclosed. The parties hereto consent to empowering the Court with full authority to enforce any and all provisions hereof and to order such procedures as may be required to protect the confidentiality of any Confidential Material that is offered and/or entered as evidence in the course of these proceedings or produced during discovery. Pending the Court's resolution of such issues, such material shall remain designated as Confidential Material. 3 8. The inadvertent or unintentional production of documents or material without a confidentiality designation shall not be deemed a waiver in whole or in part of a party's claim of confidential treatment under the terms of this Confidentiality Agreement. A producing party may notify the receiving party that documents or material that should have been designated Confidential Material were inadvertently produced without being so designated. Upon receiving such notice from the producing party, all such documents shall be deemed Confidential Material and arrangements made to designate such documents as confidential pursuant to paragraph 3 of this Confidentiality Agreement. The receiving party shall also make all reasonable efforts to retrieve any copies of such inadvertently produced material from any persons not authorized under paragraph 5 to receive such material. 9. The inadvertent or unintentional disclosure by any party of documents or material protected by the attorney-client privilege or work product doctrine or other applicable privilege will not constitute a waiver of any available privilege or protection by the disclosing party, either as to the specific information disclosed or as to any other information disclosed or as to any other information relating thereto on the same or related subject matter. Upon the request of the producing party, the receiving party will promptly return any attorney-client privileged or work product protected document or other privileged material and any copies thereof, and destroy all notes and other materials referring to the attorney-client privileged, work product protected or other privileged information. No such inadvertently produced attorney-client privileged or work product protected document or information or other privileged material may be used in evidence against the producing party. 10. Nothing contained in this Confidentiality Agreement shall affect or restrict the rights of any party with respect to its own documents. Further, nothing in this Confidentiality 4 Agreement shall restrict or limit a party's right or ability to enforce any rights (contractual statutory or otherwise) respecting confidential information. trade secrets and other proprietary information. 11. In filing with the Court any pleading, brief or other paper that quotes or contains Confidential Material, the parties shall follow the individual procedures of the assigned judge and part, and the following additional rules shall apply: a. Counsel shall seek permission to file under seal only those specific documents and only those specific portions of deposition testimony that have been designated as Confidential Material. b. To the extent practicable, only the specific portion of a pleading, motion, memorandum, brief or other paper that quotes or sets forth the substance of Confidential Material shall be subject to the request to file under seal. c. Where, in counsel's good faith judgment, the quotation or discussion of Confidential in a particular motion, memorandum, Material brief or other paper is so pervasive as to render compliance with subparagraph b impracticable, counsel are authorized to seek permission to file the entire motion, memorandum, brief or other paper under seal. d, The Court shall thereafter determine the treatment of the Confidential Materials. 12. If Confidential Materials in the possession of any party are responsive to any subpoena or any other form of compulsory process of the court, or any other administrative, judicial or legislative body, or if any other persons or tribunal purporting to have authority seek such information by compulsory process, the party to whom the process or inquiry is directed shall give written notice within ten business days of receipt of such process or inquiry to the producing party. The party to whom the process or inquiry is directed shall object to the production of the Confidential Materials based on the existence of this Agreement. 13. Upon final termination of this matter. a party producing Confidential Material may request, at its election, either the return or destruction of all such material and of other documents containing information or data from the Confidential Material, and all copies thereof made by or 5 on behalf of the receiving parties, and the receiving parties shall comply with such request unless otherwise ordered by the Court. 14. Producing or receiving Confidential Material or otherwise complying with the terms of this Agreement shall not: (a) Prejudice in any way the rights of any party to object to the production of documents it considers not subject to discovery, or operate as an admission by any party that the restrictions and procedures set forth herein constitute adequate protection for any particular information deemed by any party to be Confidential Material; (b) Prejudice in any way the rights of any party to object to the admissibility into evidence of any document, testimony or the evidence subject to this Agreement; (c) Prejudice in any way the rights of any party to seek a determination by the Court whether any information, documents or material, designated as Confidential Material should be so designated and subject to the terms of this Agreement; (d) Prejudice in any way the rights of any party to petition the Court for a protective order relating to any purportedly Confidential Material. 6 STIPULATED, AGREED AND CONSENTED TO THIS __ DAY OF OCTOBER 2019. AKIN LAW GROUP, PLLC EPSTEIN BECKER & GREEN, P.C. By: By: Rob Sal tan James S. Frank Zafer A. Akin Brian G. Cesaratto 45 Broadway, Suite 1420 250 Park Avenue New York, New York 10006 New York, New York 10177 (212) 825-1400 (212) 351-4500 Attorney for Plaintiff Attorneys for Defendant NewYork-Presbyterian Brooklyn Methodist, Dr. Joseph Bove, Dr. Christopher Kelly So Ordered: LS.C. 7 EXHIBIT A AGREEMENT CONCERNING CONFIDENTIAL MATERIAL The undersigned hereby acknowledges that (s)he has been given a copy of and has read the Order" "Joint Confidentiality Agreernent and pertaining to the case entitled "Stephanie Doniger v. New York Presbyterian Brooklyn Methodist Hospital et al, Supreme Court of the State of New York, County of Brooklyn, Index No.: 521691/2018, understands the terms thereof, and agrees to be bound by such terms. Date Signature Name (print) 8