WHEREAS discovery herein from the
Defendants Rookwood, Labadie, and Wiltse (“Defendants”) or New York State
Department of Corrections and Community Supervision (“DOCCS”) may include the
production of information and/or documents that Defendants or DOCCS contend
(a) contain highly sensitive information, policies, procedures, confidential
personnel information, and other sensitive proprietary information, or other
matters that, if disclosed, could jeopardize correctional or institutional
safety, security or good order, or (b) contain information that is
confidential under state or federal law;
WHEREAS discovery herein from
Plaintiff, Defendants or DOCCS may include confidential medical or mental
health treatment information that references highly sensitive details of a
patient's diagnosis and/or treatment the parties and DOCCS would prefer to be
treated confidentially;
IT IS
HEREBY STIPULATED AND AGREED OR OTHERWISE ORDERED that:
1. The
term “document” as used herein is defined to be synonymous in meaning and
equal in scope to the usage of this term in Federal Rule of Civil Procedure
34(a) and Rule 26.3(c)(2) of the Local Civil Rules of this Court.
2. The
term “Plaintiff” as used herein shall mean named Plaintiff Alaa Agina.
3. The
term “Institutional Records” as used herein shall mean Plaintiff's own
records that Plaintiff or Counsel has acquired, such as grievances, sick call
slips, and records from Plaintiff's counseling files.
4.
Defendants or DOCCS may designate as confidential any information, documents,
or thing, or portion of any document or thing produced by Defendants or DOCCS
from the records of Defendants and DOCCS and the information contained
therein, the disclosure of which Defendants or DOCCS believe would jeopardize
correctional or institutional safety, security or good order, or which
contain information that is confidential under state or federal law, which
shall be referred to hereafter as “Confidential Material” or “Attorneys Eyes
Only” including, but not limited to those set forth in Paragraph 7 and 11,
except the medical records of Plaintiff for whom they have received HIPAA
releases, or institutional records, correspondence or other documents
produced by Plaintiff. The designation of any document as “Confidential
Material” or “Attorneys Eyes Only” must be apparent on the face of each page
of the document created by either a watermark or bates-stamp to the extent
possible given the format.
5.
Plaintiff may redact confidential information from their medical records
produced from the records of DOCCS or any other health services provider with
precise redactions of information related to the diagnosis or treatment of
HIV, AIDS, Hepatitis or any other socially stigmatizing disease so long as
the reasons for the redactions are disclosed to Defendants and the patient's
disease was not a basis for medical decisions related to the Litigation.
Materials
Covered
6. This
Protective Order shall apply to all information and materials produced or
disclosed from this point forward during the course of the above-captioned
action (the “Action”), by Defendants or DOCCS, including but not limited to
information produced or disclosed:
a. In
any pleading, document, affidavit, interrogatory answer, responses to
requests for admission, brief, motion, transcript, or any other writing;
b. In
testimony given in a deposition by a witness or Party in the control of
Defendants or DOCCS, and any transcript copies, or summaries of such
information; or
c.
Through any other manner or means of discovery, including entry onto land or premises and inspection of
books, records, documents and tangible things possessed by Defendants or
DOCCS.
Confidential
Materials
7. Any
party may designate as confidential any information, document, or thing, or
portion of any document or thing produced by that party, the disclosure of
which that party believes would contain information that is confidential
under state or federal law, which shall be referred to hereafter as
“Confidential Material,” including but not limited to the following:
a.
Reports and other records prepared by the DOCCS Office of Special
Investigations, or its predecessor entity the DOCCS Office of the Inspector
General, in connection with an investigation conducted by that entity;
b. All
personnel, health care (including but not limited to drug or substance abuse
records), mental health care, and labor relations records that contain
personally identifiable information concerning any employee of DOCCS or any
incarcerated individual in the custody of DOCCS, with the exception of
Plaintiff to the extent that it is not statutorily prohibited, provided that,
for mental health records, the review and determination required by New York
Mental Health Law § 33.16 has been completed before any records approved for
release are produced;
c. All
documents and information that relate to the substance or contents of any and
all personnel files, including but not limited to personal, departmental, and
administrative files and other personnel information prepared or maintained
by the State of New York (including without limitation, the Department of
Corrections and Community Supervision), including but not limited to
documents reflecting any disciplinary proceedings, performance evaluations,
and counselings of any personnel of DOCCS, unless already possessed by a
party or witness;
d. All
maps, blueprints, photographs, drawings, schematics, and any other written
depiction or description of any DOCCS correctional facilities;
e. All
directives or written policies issued by DOCCS or any correctional facility
operated by DOCCS that are classified as “D” in DOCCS Directive 0001,
indicating that they contain information affecting the safety and security of
correctional facilities and are handled as confidential material and
restricted from unauthorized access;
f. Any
documents and information which counsel for all parties agree should be
considered Confidential Material;
g. All
DOCCS training materials for corrections officers, sergeants, lieutenants,
captains, deputy superintendents or medical staff, that refers to or concerns
correctional or institutional safety, security, or good order;
h. Any
other records that Defendants or DOCCS believe would compromise the safety or
security of a DOCCS facility if disclosed to an inmate in the custody of
DOCCS and/or the general public;
i. Any
documents and information which counsel for a party designates as
“Confidential Material” and to which counsel for the other party does not
object; and
j.
Testimony about the documents and information covered by Paragraph 8(a)-(i).
8.
Access to the Confidential Material shall be limited to:
a.
Plaintiff's counsel;
b.
Defendants’ counsel;
c.
Employees and independent contractors of the respective attorneys for
Plaintiff or Defendants who have responsibility for the preparation or trial
of this action, or any appeal thereof;
d. The
parties’ respective experts and consultants, to the extent deemed necessary
to the conduct of this litigation by the respective attorneys for Plaintiff
or Defendants, except that, prior to any such person being given access to
the Confidential Material, that person shall be given a copy of this
Stipulation and Protective Order and shall execute the Certification annexed
hereto;
e.
Individual employees and former employees of DOCCS, to the extent that such
individual employees would have access to the Confidential Materials as part
of their employment by DOCCS or would require review to prepare for intended
testimony;
f. Court
reporters, to the extent deemed necessary for the conduct of this litigation
by the respective attorneys for Plaintiff or Defendants; and
g. The
Court.
9.
Notwithstanding the provisions of Paragraph 8, Confidential Material may be
possessed by Plaintiff as follows: (i) Plaintiff's own statements to the
DOCCS Office of Special Investigations, or its predecessor entity the DOCCS
Office of the Inspector General, in connection with any investigation
conducted by that entity.
10. All
other Confidential Materials, with the exception of “Attorneys’ Eyes Only”
Material as set forth in Paragraph 11, may be shown to Plaintiff by his
counsel or a DOCCS employee facilitating review for purposes of trial
preparation but may not be possessed by him in original or copy.
11.
Defendants and DOCCS may further designate Confidential Material as
“Attorneys’ Eyes Only” documents or information produced by Defendants or
DOCCS from their files in the following categories:
a. Any
documents or information that Defendants or DOCCS produce and believe in good
faith would compromise the safety, institutional security, and good order of
a DOCCS facility if disclosed to an inmate in the custody of DOCCS or any
former DOCCS inmate and/or the general public;
b. Any
documents and information which counsel for all parties agree should be
considered Attorneys’ Eyes Only Material; and
c. Any
documents and information which counsel for a party designates as Attorneys’
Eyes Only Material and to which counsel for no other party objects.
12.
Access to Attorneys’ Eyes Only Material shall be limited to:
a.
Attorneys for Plaintiff;
b.
Attorneys for Defendants;
c.
Employees and independent contractors of the respective attorneys for
Plaintiff or Defendants who have responsibility for the preparation or trial
of this action, or any appeal thereof;
e. The
parties’ respective experts and consultants, to the extent deemed necessary
to the conduct of this litigation by the respective attorneys for Plaintiff
or Defendants, except that, prior to any such person being given access to
the Attorneys’ Eyes Only Material, that person shall be given a copy of this
Stipulation and Protective Order and shall execute the Certification annexed
hereto;
f.
Individual employees or former employees of DOCCS, including Defendants, to
the extent that such individual employees would have access to the Attorneys’
Eyes Only” Material as part of their employment with DOCCS or require review
of the document for intended testimony;
g. Court
reporters, to the extent deemed necessary for the conduct of this litigation
by the respective attorneys for Plaintiffs or Defendants; and
h. The
Court.
13. All
transcripts of depositions taken in this Action will be treated as
Confidential Material in their entirety for ten (10) days after being
notified that a full and final copy of the deposition transcript is
available. During that ten (10) day period, any party may designate as
Confidential Material any portion of the transcript, by page and line, and
any deposition exhibits related to the subject areas described in Paragraph 7
herein, and such designation must be provided to all counsel in writing to be
deemed effective. Any portion of the deposition transcript or exhibits not so
designated during the ten (10) day period will not be treated as Confidential
Material.
14. An
inadvertent failure to designate Confidential Material or Attorneys’ Eyes
Only Material may be corrected by supplemental written notice given as soon
as practicable; however, no Party shall be deemed in violation of this
Agreement for the dissemination or use of material not designated
“Confidential Material” or “Attorneys’ Eyes Only” prior to such designation.
15.
Nothing in this Agreement shall be construed to allow the designation as
“Confidential” or “Attorney's Eyes Only” of any documents already collected
or produced by any party without such designation during the course of this
litigation or any other litigation. The designation of any document as
“Confidential” or “Attorney's Eyes Only” in this litigation shall not impact
the designation of any such document in any separate litigation.
16.
Notwithstanding the treatment as Confidential Material or Attorneys’ Eyes
Only Material of any personnel or other records that contain personally
identifiable information concerning any employee of DOCCS, it is understood
that to the extent that unauthorized disclosure of such information would
violate the Health Insurance Portability and Accountability Act (“HIPAA”) and
N.Y. State Mental Hygiene Law § 33.13, the names, names of family members,
residence addresses, employee insurance information, Social Security numbers
and/or identification numbers of any employee who has not provided DOCCS with
a duly executed authorization permitting disclosure of such information shall
be redacted from the documents produced by DOCCS.
17.
Confidential Material or Attorneys’ Eyes Only Material shall be treated as
confidential and not disclosed, except to the extent provided in this
Stipulation and Protective Order or as otherwise ordered by the Court.
18. No
person receiving Confidential Material or Attorneys’ Eyes Only Material
pursuant to this Stipulation and Protective Order shall disclose or discuss
the contents of such Confidential Material in any manner, written or oral, to
or with any person who is not entitled to receive such Confidential Material
pursuant to this Stipulation and Protective Order.
19. The
Confidential Material or Attorneys’ Eyes Only Material shall not be disclosed
in open court without first affording the designating party's counsel an
opportunity to contest disclosure and/or admissibility of the Confidential
Material. Nothing in this Stipulation of Confidentiality and Protective Order
shall render otherwise admissible evidence inadmissible, subject only to the
Court's taking action to preclude disclosure of such evidence to anyone other
than the jury, the Court itself, and such other persons that the Court deems
appropriate.
20. If a
party in good faith objects to the designation of any document as
Confidential Material or Attorneys’ Eyes Only Material, such party shall
state such objection in writing to the counsel for the party that designated
the Confidential Material or Attorneys’ Eyes Only Material within fifteen
(15) days of the objecting party's receipt of the Confidential Material or
Attorneys’ Eyes Only Material or designation thereof. Counsel shall in good
faith attempt to resolve such conflict. If the conflict cannot be resolved
among counsel within fifteen (15) days of the written objection, the
designating party may move for a protective order pursuant to Federal Rule
Civil Procedure 26. If after sixteen (16) days of receipt of a party's
written objection to the designation, the designating party has not moved for
a protective order, the designations will be deemed null and void. Any
disputed documents shall be treated as Confidential Material or Attorneys’
Eyes Only Material until the parties resolve the conflict, the Court issues
its ruling regarding the conflict or the designating party fails to move for
a protective order within sixteen (16) days of receipt of the written
objection. Nothing in this paragraph shall interfere with the parties’
obligations created by Rule 26 of the Federal Rules of Civil Procedure.
21.
Confidential Material or Attorneys’ Eyes Only Material may be disclosed
pursuant to a subpoena, request or order of a court, administrative agency or
tribunal with actual or apparent authority over counsel, provided, however,
that, in the event that counsel intends to produce documents containing
Confidential Material or Attorneys’ Eyes Only Material or that contain
Confidential Material or Attorneys’ Eyes Only Material obtained from such
documents in response to such order, counsel shall serve notice of such order
upon designating party's counsel, identifying by Bates numbers the documents
it intends to produce, not less than ten (10) business days prior to the
production thereof, to give the designating party the opportunity to seek a
protective order against such production unless the court orders that they be
produced sooner, in which event counsel will serve notice upon designating
party's counsel as soon as practicable.
22. In
the event that any counsel intends to file with the Court any papers that
attach or enclose documents containing Confidential Material or Attorneys’
Eyes Only Material produced pursuant to this Stipulation and Protective Order
or that contain Confidential Material or Attorneys’ Eyes Only Material
obtained from such documents, including deposition transcripts, that counsel
shall serve notice of such intention upon the party who designated the
documents as Confidential Material or Attorneys’ Eyes Only Material,
identifying by Bates numbers the documents to be filed, not less than ten
(10) business days prior to the filing thereof, to give the designating party
the opportunity to request or move the Court to direct that such documents be
filed under seal, provided, however, that such notice shall not be construed
as a waiver of the attorney-client privilege, attorney work product
privilege, or any other applicable privilege or immunity.
23.
Unless otherwise provided in the Local Rules or by Order of the Court, when
filing court papers under seal, such papers or documents shall be filed in
the manner set forth in Section 11 of this Court's Individual Rules.
24.
Except as provided for in Paragraphs 7 and 11 herein, consented to in writing by producing
counsel, or ordered by the Court, and notwithstanding any other term or
provision contained in this Stipulation and Protective Order, Confidential
Material or Attorneys’ Eyes Only Material shall not be released or disclosed
in any manner to any person who is or was an incarcerated individual in the
custody of DOCCS.
25.
Nothing herein shall be deemed to waive any applicable privilege or excuse
any party from adhering to the mandates of the Federal Rules. No privilege or
protection is waived by disclosure connected with this lawsuit, nor is any
such disclosure a waiver in any other federal or state proceeding, and any
inadvertently disclosed material is subject to return to the producing party
(“clawback”) without any obligation on the part of the producing party to
demonstrate compliance with Fed. R. Evid. 502(b)(1)-(3) and Fed. R. Civ. P.
26(b)(5)(B) relating to inadvertent disclosure. However, nothing herein shall
be deemed to waive the right of the receiving party to dispute the producing
party's claim of privilege.
26.
Confidential Material or Attorneys’ Eyes Only Material designated pursuant to
the terms of this Stipulation and Protective Order shall be used by the
receiving party solely for the purposes of this action and solely to the
extent necessary for the litigation of this action, including any appeals
thereof, except in the instances described in Paragraph 18 above.
27.
Three (3) years after the conclusion of this Action, including any appeals
therefrom, any counsel who received Confidential Material or Attorneys’ Eyes
Only Material shall either return to the producing party's counsel all
Confidential Material, and any copies thereof, in its custody, possession or
control and any documents containing Confidential Material, in whole or in
part, and any copies made therefrom or shall notify the producing party's
counsel in writing that all such Confidential Material or Attorneys’ Eyes
Only Material has been destroyed except to the extent any such destruction
may conflict with counsels’ obligations under the New York State Code of
Professional Responsibility or in counsel's judgment may affect his/her
ability to defend himself/herself against a potential malpractice
disciplinary action. For good cause shown, a party may move the Court for
modification of this provision.
28.
Nothing in this Order shall foreclose the parties from separately negotiating
and agreeing in writing to the confidential treatment of documents not
contemplated by this Stipulation and Protective Order and identified in
Paragraph 7 or Paragraph 11 herein.
29. As
discussed in Paragraph 5, the confidentiality designations in this Order
cover material produced going forward, but not material collected or produced
to date except if already protected by a Confidentiality Stipulation. Nothing
in this Order shall foreclose the parties from negotiating and agreeing in
writing to the confidential treatment of documents previously produced or
prejudice the parties in seeking a supplemental protective order over such
documents should the parties fail to reach an agreement.
SO ORDERED:
Dated: 11/11/23