028.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
___________________________________________x

TEALA DAVIES,

Plaintiff,

-against-

DARREN K. INDYKE and RICHARD D. KAHN,
as EXECUTORS OF THE ESTATE OF JEFFREY E.
EPSTEIN,

Defendants.
___________________________________________x

Case No. 19 Civ. 10788 (GHW)(DCF)

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER

WHEREAS, Plaintiff Teala Davies and Defendants Darren K. Indyke and Richard D.
Kahn, Co-Executors of the Estate of Jeffrey E. Epstein (collectively, the “Parties” and each
individually, a “Party”), request that this Court issue a protective order pursuant to Federal Rule
of Civil Procedure 26(c) to protect the confidentiality of nonpublic and sensitive information that
they may need to disclose in connection with discovery in this action;

WHEREAS, the Parties, through counsel, agree to the following terms; and

WHEREAS, this Court finds that good cause exists for issuance of an appropriately
tailored confidentiality order governing the pretrial phase of this action;

IT IS HEREBY ORDERED that the Parties to this action, their respective agents,
employees, and attorneys, any other person in active concert or participation with any of the
foregoing, and all other persons with actual notice of this Order will adhere to the following
terms, upon pain of contempt:

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1. With respect to “Discovery Material” (i.e., documents, information or tangible
things of any kind produced or disclosed in the course of discovery in this action) that a person
has designated as “Confidential” pursuant to this Order, no person subject to this Order may
disclose such Confidential Discovery Material to anyone else except as expressly permitted
hereunder.

2. The Party or person producing or disclosing Discovery Material (each,
“Producing Party”) may designate as Confidential only the portion of such material that it
reasonably and in good faith believes consists of:

(a) medical, mental health and/or other health care records;

(b) previously non-disclosed financial information;

(c) any other material the Parties agree in writing is Confidential;

(d) non-public information that the producing person in good faith considers to
be, reflect, or reveal business, marketing, financial, or regulatory information or
data, or information of commercial value, including, without limitation, trade
secrets, contracts with third parties, or other information required by law or
agreement to be kept confidential; or

(e) any other category of information given confidential status by this Court after
the date of this Order.

3. With respect to the Confidential portion of any Discovery Material other than
deposition transcripts and exhibits, the Producing Party or its counsel may designate such portion
as “Confidential” by: (a) stamping or otherwise clearly marking as “Confidential” the protected
portion in a manner that will not interfere with legibility or audibility; and (b) producing for

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future public use another copy of said Discovery Material with the confidential information
redacted.

4. A Producing Party or its counsel may designate deposition exhibits or portions of
deposition transcripts as Confidential Discovery Material either by: (a) indicating on the record
during the deposition that a question calls for Confidential information, in which case the
reporter will bind the transcript of the designated testimony in a separate volume and mark it as
“Confidential Information Governed by Protective Order;” or (b) notifying the reporter and all
counsel of record, in writing, within 30 days after a deposition has concluded, of the specific
pages and lines of the transcript that are to be designated “Confidential,” in which case all
counsel receiving the transcript will be responsible for marking the copies of the designated
transcript in their possession or under their control as directed by the Producing Party or that
person’s counsel. During the 30-day period following a deposition, all Parties will treat the entire
deposition transcript as if it had been designated Confidential.

5. If at any time before the termination of this action a Producing Party realizes that
it should have designated as Confidential some portion(s) of Discovery Material that it
previously produced without limitation, the Producing Party may so designate such material by
notifying all Parties in writing. Thereafter, all persons subject to this Order will treat such
designated portion(s) of the Discovery Material as Confidential. In addition, the Producing Party
shall provide each other Party with replacement versions of such Discovery Material that bears
the “Confidential” designation within two business days of providing such notice.

6. Nothing contained in this Order will be construed as: (a) a waiver by a Party or
person of its right to object to any discovery request; (b) a waiver of any privilege or protection;
or (c) a ruling regarding the admissibility at trial of any document, testimony, or other evidence.

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7. Where a Producing Party has designated Discovery Material as Confidential,
other persons subject to this Order may disclose such information only to the following persons:

(a) the Parties to this action;

(b) counsel retained specifically for this action, including any paralegal, clerical,
or other assistant that such outside counsel employs and assigns to this matter;

(c) outside vendors or service providers (such as copy-service providers and
document-management consultants) that counsel hire and assign to this matter,
provided such person has first executed a Non-Disclosure Agreement in the form
annexed as Exhibit A hereto;

(d) any mediator or arbitrator that the Parties engage in this matter or that this
Court appoints, provided such person has first executed a Non-Disclosure
Agreement in the form annexed as Exhibit A hereto;

(e) as to any document, its author, its addressee, and any other person indicated on
the face of the document as having received a copy;

(f) any witness who counsel for a Party in good faith believes may be called to
testify at trial or deposition in this action, provided such person has first executed
a Non-Disclosure Agreement in the form annexed as Exhibit A hereto;

(g) any person a Party retains to serve as an expert witness or otherwise provide
specialized advice to counsel in connection with this action, provided such person
has first executed a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto;

(h) stenographers engaged to transcribe depositions the Parties conduct in this
action; and

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(i) this Court, including any appellate court, its support personnel, and court
reporters.

10. Before disclosing any Confidential Discovery Material to any person referred to
in subparagraphs 7(c), 7(d), 7(f), or 7(g) above, counsel must provide a copy of this Order to
such person, who must sign a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto stating that he or she has read this Order and agrees to be bound by its terms. Said counsel
must retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to
opposing counsel either before such person is permitted to testify (at deposition or trial) or at the
conclusion of the case including any and all appeals, whichever comes first.

11. This Order binds the Parties and certain others to treat as Confidential any
Discovery Materials so classified. The Court has not, however, made any finding regarding the
confidentiality of any Discovery Materials, and retains full discretion to determine whether to
afford confidential treatment to any Discovery Material designated as Confidential hereunder.
All persons are placed on notice that the Court is unlikely to seal or otherwise afford confidential
treatment to any Discovery Material introduced into evidence at trial, even if such material has
previously been sealed or designated as Confidential.

12. In filing Confidential Discovery Material with this Court, or filing portions of any
pleadings, motions, or other papers that disclose such Confidential Discovery Material
(“Confidential Court Submission”), the Parties shall publicly file a redacted copy of the
Confidential Court Submission via the Electronic Case Filing System. The Parties shall file an
unredacted copy of the Confidential Court Submission under seal with the Clerk of this Court,
and the Parties shall serve this Court and opposing counsel with unredacted courtesy copies of
the Confidential Court Submission. Any Party that seeks to file Confidential Discovery Material

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under seal must file an application and supporting declaration justifying—on a particularized
basis—the sealing of such documents. The parties should be aware that the Court will unseal
documents if it is unable to make “specific, on the record findings . . . demonstrating that closure
is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006). Notwithstanding any other
provision of this paragraph, if the parties stipulate that specific portions of a document are both
confidential and immaterial to this lawsuit, a party may publicly file a version of the document
with those confidential and immaterial portions redacted, and that party need not submit an
unredacted version to the Court or file a motion to seal.

13. Any Party who objects to any designation of confidentiality may at any time
before the trial of this action serve upon counsel for the Producing Party a written notice stating
with particularity the grounds of the objection. If the Parties cannot reach agreement promptly,
counsel for all affected Parties will address their dispute to the Court by motion. The Parties shall
treat the disputed materials as Confidential pending the Court’s resolution of such motion.

14. Any Party who requests additional limits on disclosure (such as “attorneys’ eyes
only” in extraordinary circumstances), may at any time before the trial of this action serve upon
counsel for the recipient Parties a written notice stating with particularity the grounds of the
request. If the Parties cannot reach agreement promptly, counsel for all affected Parties will
address their dispute to the Court.

15. Recipients of Confidential Discovery Material under this Order may use such
material solely for the prosecution and defense of this action, any appeals thereto, and any
alternative dispute resolution proceeding intended to resolve this action with prior express
permission of the producing party, and not for any other purpose or in any other litigation

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proceeding. Nothing contained in this Order, however, will affect or restrict the rights of any
Party with respect to its own documents or information produced in this action. Nor shall
anything contained in this Order prejudice a Party’s ability to seek discovery in this and any
other legal proceeding, without prejudice to any other Party’s right to object to such discovery.

16. Nothing in this Order will prevent any Party from producing any Confidential
Discovery Material in its possession in response to a lawful subpoena or other compulsory
process, or if required to produce by law or by any government agency having jurisdiction,
provided that, unless precluded by applicable laws or rules, such Party gives written notice to the
Producing Party as soon as reasonably possible, and if permitted by the time allowed under the
request, at least 10 days before any disclosure. Upon receiving such notice, the Producing Party
will bear the burden to oppose compliance with the subpoena, other compulsory process, or other
legal notice if the Producing Party deems it appropriate to do so.

17. Each person who has access to Discovery Material designated as Confidential
pursuant to this Order must take all reasonable precautions to prevent the unauthorized or
inadvertent disclosure of such material.

18. If a receiving party receives documents or other materials that it has reason to
believe are subject to a good faith claim of attorney-client privilege, work product protection, or
other privilege or immunity from disclosure, the receiving party must refrain from examining the
documents or other materials any more than is essential to ascertain whether the documents or
other materials are reasonably subject to such a claim. The receiving party shall promptly notify
the producing person in writing that the receiving party possesses documents or other material
that appears to be privileged or otherwise protected from disclosure.

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19. If, in connection with this litigation, a producing person inadvertently discloses
information that is subject to a claim of attorney-client privilege, attorney work product
protection, or any other privilege or immunity from disclosure (“Inadvertently Disclosed
Information”), such disclosure shall not constitute or be deemed a waiver or forfeiture of any
claim of privilege, work product protection, or other privilege or immunity from discovery with
respect to the Inadvertently Disclosed Information or its subject matter. In addition, a producing
person may use its own document (e.g., as a deposition exhibit) containing material that is
subject to a claim of privilege or immunity from disclosure for the purpose of establishing the
basis of such claim without waiver of any applicable privilege or immunity from disclosure,
unless the producing person affirmatively uses or relies upon the specific material contained in
the document that is subject to the claim of privilege or immunity from disclosure for any
purpose other than establishing the basis of such claim.

20. If a producing person makes a claim of inadvertent disclosure, the receiving party
shall, within five business days, return or destroy all copies of the Inadvertently Disclosed
Information, and provide a certification of counsel that all such information has been returned or
destroyed, unless the receiving party seeks to dispute that the information is privileged or
otherwise protected as set forth below. Until the dispute is resolved or ruled upon, the receiving
party shall undertake to keep such information restricted solely for use in connection with the
dispute over the privilege or protection.

21. Within five business days after the notification that such Inadvertently Disclosed
Information has been returned or destroyed, the producing person shall produce a privilege log
with respect to the Inadvertently Disclosed Information.

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22. The receiving party may move the Court for an Order compelling production of
the Inadvertently Disclosed Information. Pursuant to the parties’ obligations set forth herein, the
motion shall not quote or paraphrase the substance of the document subject to the motion to
compel beyond the description of the document contained in the privilege log entry for the
document. The motion shall be filed under seal, and shall not assert as a ground for entering
such an Order the fact or circumstances of the inadvertent production in this action.

23. The producing person retains the burden of establishing the privileged or
protected nature of any Inadvertently Disclosed Information. Nothing in this Order shall limit
the right of any producing person or receiving party to request an in camera review of the
Inadvertently Disclosed Information.

24. Within 60 days of the final disposition of this action—including all appeals—all
recipients of Confidential Discovery Material must either return it—including all copies
thereof—to the Producing Party, or destroy such material—including all copies thereof. In either
event, by the 60-day deadline, the recipient must certify its return or destruction by submitting a
written certification to the Producing Party that affirms that it has not retained any copies,
abstracts, compilations, summaries, or other forms of reproducing or capturing any of the
Confidential Discovery Material. Notwithstanding the foregoing: (i) Discovery Materials that
have been received electronically and that cannot be returned or destroyed must be electronically
deleted and deleted from “trash” files, and the recipient must take reasonable measures to ensure
that unauthorized persons do not have access to Confidential information residing on the
recipient’s computer server and back-up media; and (ii) outside counsel for the parties are
permitted to retain one archival copy of all pleadings, motion papers, court filings made under
seal, transcripts, legal memoranda, correspondence, attorney work product, written discovery

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responses, deposition and trial exhibits, and expert reports, even if such materials contain
Confidential Discovery Material, subject to a continuing obligation to protect information
designated Confidential pursuant to this Order.

25. This Order will survive the termination of the litigation and will continue to
be binding upon all persons subject to this Order to whom Confidential Discovery Material is
produced or disclosed.

26. This Court will retain jurisdiction over all persons subject to this Order to the
extent necessary to enforce any obligations arising hereunder or to impose sanctions for any
contempt thereof.

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SO STIPULATED AND AGREED.

TROUTMAN SANDERS LLP

/s/ Bennet J. Moskowitz
Bennet J. Moskowitz
875 Third Avenue
New York, New York 10022
(212) 704-6000
bennet.moskowitz@troutman.com

Attorneys for Defendants Darren K. Indyke
and Richard D. Kahn, Co-Executors of
the Estate of Jeffrey E. Epstein

Dated: March 16, 2020

CUTI HECKER WANG LLP

/s/ Mariann Meier Wang
Mariann Meier Wang
305 Broadway, Suite 607
New York, New York 10007
(212) 620-2603
mwang@chwllp.com

Attorneys for Plaintiff

Dated: March 16, 2020

SO ORDERED.

Dated: _____________________________________
New York, New York

Exhibit A
to Stipulated Confidentiality
Agreement and Protective Order

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
___________________________________________x

TEALA DAVIES,

Plaintiff,

-against-

DARREN K. INDYKE and RICHARD D. KAHN,
as EXECUTORS OF THE ESTATE OF JEFFREY E.
EPSTEIN,

Defendants.
___________________________________________x

Case No. 19 Civ. 10788 (GHW)(DCF)

NON-DISCLOSURE
AGREEMENT

I, _______________________________, acknowledge that I have read and understand
the Protective Order in this action governing the non-disclosure of those portions of Discovery
Material that have been designated as Confidential. I agree that I will not disclose such
Confidential Discovery Material to anyone other than for purposes of this litigation and that at
the conclusion of the litigation I will return all discovery information to the Party or attorney
from whom I received it. By acknowledging these obligations under the Protective Order, I
understand that I am submitting myself to the jurisdiction of the United States District Court for
the Southern District of New York for the purpose of any issue or dispute arising hereunder and
that my willful violation of any term of the Protective Order could subject me to punishment for
contempt of Court.

______________________________
Date: