In Re: Nine West LBO Securities Litigation
1:20-md-02941 | S.D.N.Y. | Jun 22, 2020
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 1 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE: NINE WEST LBO SECURITIES LITIGATION No. 20-MD-2941 (JSR)
Pertains to All Associated Actions PROTECTIVE ORDER
Nee ee ee ee ee Se”
JED S. RAKOFF, U.S.D.J.
The undersigned parties having agreed to the following terms of confidentiality, and the
Court having found that good cause exists for issuance of an appropriately-tailored
confidentiality order governing the pre-trial phase of this action, it is therefore hereby
ORDERED that any person subject to this Order — including without limitation the
parties to this action, their representatives, agents, experts and consultants, all third parties
providing discovery in this action, all persons that previously provided documents, testimony, or
other information (the “Bankruptcy Case Material”) in connection with the related Chapter 11
cases In re Nine West Holdings, Inc., et al., No. 18-10947 (Bankr. S.D.N.Y.) (the “Bankruptcy
Case”) that are produced in this action, and all other interested persons with actual or
- constructive notice of this Order — shall adhere to the following terms, upon pain of contempt:
1, Any person subject to this Order who receives from any other person any
“Discovery Material” (i.e., information of any kind provided in the course of discovery in this
action) that is designated as “Confidential” pursuant to the terms of this Order shall not disclose
such Confidential Discovery Material to anyone else except as expressly permitted hereunder.
2. All Confidential Discovery Material produced or disclosed in connection with this
action shall be used solely for the prosecution or the defense of this action (including any appeal
therefrom) and for no other purpose.
VOB 8 TE EOI
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 2 of 13
3. The person producing any given Discovery Material may designate as
Confidential only such portion of such material as consists of:
(a) Previously nondisclosed financial information (including without
limitation profitability reports or estimates, percentage fees, design fees, royalty rates,
minimum guarantee payments, sales reports and sale margins), but only if such
information could reasonably be expected to cause present, concrete, and material harm if
disclosed;
(b) Previously nondisclosed material relating to ownership or control of any
non-public company, but only if such information could reasonably be expected to cause
present, concrete, and material harm if disclosed;
(c) Previously nondisclosed business plans, product development information,
or marketing plans, but only if such information could reasonably be expected to cause
present, concrete, and material harm if disclosed;
(d) Any information of a personal or intimate nature regarding any individual;
or
(e) Any other category of information hereinafter given confidential status by
the Court;
provided, however, that, subject to the procedures set forth in the Court’s Case Management Plan
& Scheduling Order dated June 12, 2020, any information (whether Bankruptcy Case Material or
other Discovery Material that may be produced in this action) identifying defendants named in
these actions to date as receiving payments based on Jones Group stock or change-in-control
payments, or identifying the amounts of such payments to such defendants, and any information
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 3 of 13
previously de-designated in connection with the Bankruptcy Case or this litigation, shall not be
designated as Confidential.
4, Certain Bankruptcy Case Material was designated as “Confidential” or “Highly
Confidential” pursuant to a confidentiality order (the “Bankruptcy Order”), as amended, that was
entered by the Bankruptcy Court for the Southern District of New York in the Bankruptcy Case,
ECF Nos. 972, 1471, and 1544. This Order supersedes the Bankruptcy Order as it relates to all
confidentiality designations respecting all Bankruptcy Case Material produced in or otherwise
used in this action.
5, To give persons that designated Bankruptcy Case Material as Confidential or
Highly Confidential under the Bankruptcy Order an opportunity to appear and be heard as to the
production of any such material under this Order, while avoiding unnecessary delays in the
production of materials in this action, any person producing in these actions Bankruptcy Case
Material designated as Confidential or Highly Confidential under the Bankruptcy Court Order
shall, no later than 14 days prior to production in these actions, provide notice via email of such
production and this Order to the person (or counsel for such person if known to the producing
person) that originally produced and designated such Bankruptcy Case Material as Confidential
or Highly Confidential under the Bankruptcy Court Order. To the extent such originally
producing person objects to the production of such documents as Confidential under this Order,
such originally producing person shall show cause to this Court, supported by affidavits or other
sworn statements of persons with personal knowledge, why Confidential treatment under this
Order is insufficient. If a designating person fails to provide such a showing, the producing
person in this action may produce such Bankruptcy Case Material as Confidential under this
Order without further notice. Nothing in this paragraph shall relieve any designating person of
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 4 of 13
its obligation to respond to any Motion for a Temporary Seal filed in accordance with
paragraph 10 hereof, or prevent a party from objecting to the confidentiality designation of any
material, including any Bankruptcy Case Material, in accordance with paragraph 11 hereof. In
no case shall the prior designation of a document as Confidential or Highly Confidential under
the Bankruptcy Order itself be considered a sufficient basis for designating such document as
Confidential under this Order.
6. With respect to the Confidential portion of any Discovery Material other than
deposition transcripts and exhibits, and subject to the provisions of paragraph 5 hereof regarding
Bankruptcy Case Material, the producing person or that person’s counsel may designate such
portion as “Confidential” by stamping or otherwise clearly marking as “Confidential” the
protected portion in a manner that will not interfere with legibility or audibility, and by also
producing for future public use another copy of said Discovery Material with the confidential
information redacted, but such requirement to produce redacted copies shall not apply to
Bankruptcy Case Material. With respect to deposition transcripts and exhibits, a producing
person or that person’s counsel may indicate on the record that a question calls for Confidential
information, in which case the transcript of the designated testimony shall be bound in a separate
volume and marked “Confidential Information Governed by Protective Order” by the reporter.
7. If at any time prior to the trial of this action, a producing person realizes that some
portion[s] of Discovery Material that that person previously produced without limitation should
be designated as Confidential, he may so designate by so apprising all parties in writing, and
such designated portion[s] of the Discovery Material will thereafter be treated as Confidential
under the terms of this Order.
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 5 of 13
8. No person subject to this Order other than the producing person shall disclose any
of the Discovery Material designated by the producing person as Confidential to any other
person whomsoever, except to:
(a) the parties to this action;
(b) counsel retained specifically for this action, including any paralegal,
clerical and other assistant employed by such counsel and assigned to this matter;
(c) as to any document, its author, its addressee, and any other person
indicated on the face of the document as having received a copy;
(d) 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 an Exhibit hereto;
(e) any person retained by a party 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 an Exhibit
hereto;
(f) stenographers or videographers engaged to transcribe or record
depositions conducted in this action;
(g) any mediator or arbitrator jointly engaged by the parties to the action;
(h) outside photocopying, graphic production services, litigation or e-
discovery support services, or document depositories as necessary for use in connection
with this action;
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 6 of 13
(i) process servers or delivery or messenger services, only insofar as such
services are used to serve, deliver, or transmit documents or media containing
Confidential Discovery Material;
) the Court and its support personnel; and
(k) any other person or entity with respect to whom the producing person may
consent in writing.
9. Prior to any disclosure of any Confidential Discovery Material to any person
referred to in subparagraphs 8(d) or 8(e) above, such person shall be provided by counsel with a
copy of this Protective Order and shall sign a Non-Disclosure Agreement in the form annexed as
an Exhibit hereto stating that that person has read this Order and agrees to be bound by its terms.
Said counsel shall retain each signed Non-Disclosure Agreement, hold it in escrow, and produce
it to opposing counsel either prior to such person being permitted to testify (at deposition or trial)
or at the conclusion of the case, whichever comes first.
10. All Confidential Discovery Material filed with the Court, and all portions of
pleadings, motions or other papers filed with the Court that disclose such Confidential Discovery
Material, shall be filed under seal with the Clerk of the Court and kept under seal until further
order of the Court. The parties must request the Court’s permission, in accordance with Rules
2(b) and 14 of the Court’s Individual Rules of Practice, to file documents under seal. The parties
will use their best efforts to minimize such sealing. Where the Confidential Discovery Material
to be filed under seal was designated as Confidential by a person other than the filing party, the
filing party may make its filing along with a Motion for a Temporary Seal, requesting that the
Court temporarily permit such filing under seal. The Motion for a Temporary Seal shall be
served on the person that designated the Discovery Material as Confidential (for the avoidance of
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 7 of 13
doubt, the designating person for any Confidential Bankruptcy Case Material is the person that
originally designated the material as Confidential in the Bankruptcy Case). The designating
person shall have 14 days to show cause to this Court, supported by affidavits or other sworn
statements of persons with personal knowledge, why the material in question should remain
Confidential. If the designating person fails to provide such a showing, the Court may deny the
Motion for a Temporary Seal and unseal all papers filed along with such motion for which such a
showing was not made. In any event, any party filing a motion or any other papers with the
Court under seal shall also publicly file a redacted copy of the same, via the Court’s Electronic
Case Filing system, that redacts only the Confidential Discovery Material itself, and not text that
in no material way reveals the Confidential Discovery Material.
11. Any party who either objects to any designation of confidentiality, or who, by
contrast, requests still further limits on disclosure (such as “attorneys’ eyes only” in
extraordinary circumstances), may at a time prior to the trial of this action serve upon counsel for
the designating person a written notice stating with particularity the grounds of the objection or
request. If agreement cannot be reached promptly, counsel for all affected persons will convene
a joint telephone call with the Court to obtain a ruling. In connection with any such objection or
dispute, the person seeking a limit on disclosure bears the burden of proof.
12. All persons are hereby placed on notice that the Court is unlikely to seal or
otherwise afford confidential treatment to any Discovery Material introduced in evidence at trial,
even if such material has previously been sealed or designated as Confidential. The Court also
retains unfettered discretion whether or not to afford confidential treatment to any Confidential
Document or information contained in any Confidential Document submitted to the Court in
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 8 of 13
connection with any motion, application, or proceeding that may result in an order and/or
decision by the Court.
13. Each person who has access to Discovery Material that has been designated as
Confidential shall take all due precautions to prevent the unauthorized or inadvertent disclosure
of such material.
14. If, in connection with this litigation, a party inadvertently discloses information
subject to a claim of attorney-client privilege or attorney work product protection (“Inadvertently
Disclosed Information”), such disclosure shall not constitute or be deemed a waiver or forfeiture
of any claim of privilege or work product protection with respect to the Inadvertently Disclosed
Information and its subject matter. If a disclosing party 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. Within five business days of the notification that
such Inadvertently Disclosed Information has been returned or destroyed, the disclosing party
shall produce a privilege log with respect to the Inadvertently Disclosed Information. The
receiving party may move the Court for an Order compelling production of the Inadvertently
Disclosed Information. 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. The disclosing
party 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 party to request an in
camera review of the Inadvertently Disclosed Information.
15. This Protective Order shall survive the termination of the litigation, Within
30 days of the final disposition of all associated actions in this litigation, all Discovery Material
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 9 of 13
designated as “Confidential,” and all copies thereof, shall be promptly returned to the producing
person or destroyed.
16. This Court shall 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.
SO STIPULATED AND AGREED as of June 22, 2020.
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 10 of 13
FRIEDMAN KAPLAN SEILER
& ADELMAN LLP
/s/ Stan Chiueh
Stan Chiueh (schiueh@fklaw.com)
7 Times Square
New York, NY 10036-6516
(212) 833-1100
Attorneys for Plaintiffs
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
/s/ Scott D. Musoff
Scott D. Musoff
(scott.musoff@skadden.com)
One Manhattan West
New York, New York 10001
Tel.: (212) 735-3000
Fax: (212) 735-2000
Robert S. Saunders, pro hac vice
forthcoming (rob.saunders@skadden.com)
Cliff C. Gardner, pro hac vice forthcoming
(cliff.gardner@skadden.com)
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899-0636
Tel.: (302) 651-3000
Fax: (302) 651-3000
Counsel for Defendants Gerald C. Crotty,
Robert L. Mettler, Mary Margaret Hastings
Georgiadis, Ann Marie C. Wilkins, Sidney
Kimmel, John D. Demsey, Matthew H.
Kamens, James A, Mitarotonda, Jeffrey D.
Nuechterlein, Lowell W. Robinson, Robert
& Susan Mettler Family Trust U/A 3/27/06,
Robert L. Mettler, Susan T. Mettler,
Trustees and Telendos, LLC
ROPES & GRAY LLP’
/s/ Gregg L. Weiner
Gregg L. Weiner
(gregg.weiner@ropesgray.com)
Andrew G. Devore
(andrew.devore@ropesgray.com)
Adam M. Harris
(adam.harris@ropesgray.com)
1211 Avenue of the Americas
New York, New York 10036
(212) 596-9000
Interim Liaison Counsel for the
Shareholder Defendants and counsel for
Defendants identified as Blackrock MSCI
USA Small Cap Equity Index Fund;
Brighthouse Funds Trust II f/k/a
Brighthouse Funds Trust Met-Series;
Columbia Management Investment
Advisers LLC; Columbia Multimanager ~
Alternative Strategies Fund; Diversified
Alpha Group Trust; DWS Investment
Management Americas, Inc. f/k/a Deutsche
Asset Management; DWS Small Cap Index
VIP; Extended Equity Market Fund a/k/a
Blackrock Institutional Trust Company,
N.A. Extended Equity Market Fund;
Extended Equity Market Master Fund
B;FIAM LLC a/k/a Fidelity Institutional
Asset Management f/k/a Pyramis Global
Advisors; Fidelity Asset Allocation
Currency Neutral Private Pool; Fidelity
Asset Allocation Private Pool; Fidelity
Balanced Currency Neutral Private Pool;
Fidelity Balanced Income Currency
Neutral Private Pool; Fidelity Balanced
Income Private Pool; Fidelity Balanced
Private Pool; Fidelity Concord Street Trust
- Fidelity Extended Market Index Fund;
Fidelity Concord Street Trust - Fidelity
Total Market Index Fund; Fidelity Income
Allocation Fund f’k/a Fidelity Monthly
High Income Fund; Fidelity Investments,
10
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 11 of 13
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
/s/ Andrew S. Gordon
Andrew S. Gordon
(agordon@paulweiss.com)
1285 Avenue of the Americas New York,
New York 10019
Tel.; (212) 373-3000
Fax: (212) 757-3990
Craig Benson, pro hac vice forthcoming
(cbenson@paulweiss.com)
2001 K Street NW, Suite 500
Washington, DC 20006
Tel: (202) 223-7300
Fax: (202) 223-7340
Counsel for Defendants Christopher R.
Cade, Dianne Card, Wesley R. Card, Ira M.
Dansky, Ira Martin Dansky Revocable
Trust, Richard L. Dickson, Cynthia
DiPietrantonio, Tami Fersko, John T.
McClain and Joseph T. Donnalley
i
Fidelity Investments Charitable Gift Fund;
Fidelity Monthly Income Fund; Fidelity
Northstar Fund; Fidelity Small Cap Index
Fund, Fidelity Total Market Index Fund;
FlexShares Morningstar US Market Factor
Tilt Index Fund; Geode Diversified Fund, a
Segregated Account of Geode Capital
Master Fund Ltd. f/k/a GDFI1,a Segregated
Account of Geode Capital Master Fund
Ltd; iShares Europe; iShares Morningstar
Small-Cap Value ETF; iShares MSCI USA
Small Cap UCITS ETF; iShares Russell
2000 ETF; iShares Russell 2000 Value
ETF; iShares Russell 3000 ETF; JNL/DFA
U.S. Small Cap Fund c/o Jackson National
Asset Management LLC; Master Small Cap
Index Series of Quantitative Master Series
LLC a/k/a iShares Russell 2000; MSCI
U.S. IMI Index Fund B2 a/k/a Blackrock
MSCI U.S. IMI Index Fund B2; Northern
Small Cap Core Fund; Northern Small
Cap Value Fund; Northern Small Cap
Index Fund; Pacific Select Fund-- PD
Small-Cap Value Index Portfolio; Pacific
Select Fund — Small-Cap Equity Portfolio;
Pacific Select Fund — Small-Cap Index
Portfolio; Pentwater Capital Management
LP; Russell 2000 Alpha Tilts Fund B;
Russell 2000 Index Fund; Russell 2000
Index Non-Lendable Fund a/k/a Blackrock
Russell 2000 Index Non-Lendable Fund;
Russell 2000 Value Fund B; Russell 2500
Index Fund a/k/a iShares Russell
Small/Mid-Cap Index Fund; Russell 3000
Index Fund a/k/a iShares Total U.S. Stock
Market Index Fund; Russell 3000 Index
Non-Lendable Fund; U.S. Equity Market
Fund; and U.S. Equity Market Fund B
Ropes & Gray LLP, as interim liaison counsel for the Shareholder Defendants, has sent this proposed
Protective Order to all known counsel to Shareholder Defendants and none has raised any objection.
11
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 12 of 13
SO ORDERED.
Dated: New York, New York
June 292020
Wi
OFF, T8.D.J.
12
Case 1:20-md-02941-JSR Document 26 Filed 06/22/20 Page 13 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
)
) No. 20-MD-2941 (JSR) ;
IN RE: NINE WEST LBO SECURITIES LITIGATION ) NON-DISCLOSURE
Pertains to All Associated Actions ) AGREEMENT IN
) CONNECTION WITH
) PROTECTIVE ORDER
)
I, , acknowledge that I have read and understand the Protective
Order in this litigation 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 (including any copies) to the party or
attorney from whom I received it or will destroy such discovery information (including any
copies). 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.
Dated: