Hon. Andrew Borrok — Part 53 Rules

JUSTICE ANDREW BORROK

PART 53 –PRACTICES AND PROCEDURES

Supreme Court of the State of New York

Commercial Division

60 Centre Street, Courtroom 238

New York, NY 10007

Oral Argument on Motions: Mondaythrough Friday, as scheduled by the Court

Conferences: Monday through Friday from 11:30 A.M.to 12:30 P.M. as

scheduled by the Court.

GENERAL

1. All parties or their counsel must familiarize themselves with the Part 53 Rules and the

Rules of the Commercial Division, 22 NYCRR 202.70.1

2. Part 53 accommodates in person, hybrid and fully virtual appearances.Virtual

appearances are supported on the Unified Court System’s approved TEAMS platform.

All appearances are scheduled as in person. Please email the Part Clerk (sfc-part53-

clerk@nycourts.gov)at least 48 hours in advance of the scheduled appearance if you

intend to appear virtually so that a TEAMS link can be forwarded to you and the Court

Reporter can be so apprised.

3. All scheduling and technology inquiries should be emailed to the Part Clerk (sfc-part53-

clerk@nycourts.gov). All other inquiries (including any requests for adjournment) are to

be emailed to Chambers (sfc-part53@nycourts.gov). When motions are fully submitted

(including those without opposition), please email the Part-Clerk (sfc-part53-

clerk@nycourts.gov)to have those motions scheduled. Please include the index number

and all counsel of record cc’d on the email. Counsel and litigants (represented or self-

represented) are advised that Justice Borrok, his Law Clerks,and Part Clerk may not

engage in any ex parte communications.

4. The Court supports the professional development of juniorattorneys and encourages their

participation in trials and oral arguments on motions. TheCourtalso strongly

encourages substantive participation incourtproceedings bywomenand diverselawyers

whohistorically havebeen underrepresentedin thecommercial bar.

1The Commercial Division Rules are available at: ww2.nycourts.gov/rules/trialcourts/202.shtml#70

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5. The Part Clerk is unable to accept deliveries or answer emails or phone calls between

1:00 and 2:15P.M. or after 4:30 P.M.

6. Counsel must notify the Court, as soon as practicable, by email of any settlement or

resolution of active cases or pending motions to avoid the unnecessary use of Court

resources on matters that are resolved or will imminently be resolved.

7. Part 53 is apaperless part. Working or courtesy copies of motions and related documents

are not accepted by email or otherwise except with prior permission of the Court for in

camera reviewor for other lawful purpose. However, counsel may bring working copies

to in person appearances to the extent they wish to refer to any such working copies.

Please do not email or send copies of any documents that were e-filed other than

proposed Orders and Stipulations requiring the Court’s signature. These should be sent

via email to Chambers (sfc-part53@nycourts.gov) in both PDF and MS Word format.

Please do not email or send Proposed Orders to Show Cause. Thesemust be e-filed for

processing in the Commercial Division Support Office. Once reviewed, they will be sent

to Chambers (sfc-part53@nycourts.gov)by the Commercial Division Support Office

once a motion sequence number is assigned.

8. The use of demonstrative evidence, including charts, graphs, and large contract language,

video depositions, and electronic media devices requireprior approval from the Court.

Requests for the use of demonstrative evidence shall be made at least one week before

the scheduled appearance date by email to Chambers explaining the need for the

demonstrative and a copy of the proposed demonstrative. Any such email request and

proposed demonstrative shall have all counsel of record or parties cc’ed on the email and

shall be made at least one week before the scheduled appearance date.

9. Trials (not currently scheduled) are scheduled following adjudication of all motions

including motions in limine.

10. Part 53 has three law clerks. Available clerkship opportunities are posted online

(https://www.nycourts.gov/legacyHTM/courts/comdiv/clerkships). Applications are

accepted on a rolling basis.

ELECTRONIC FILING

1. All cases in Part 53 are required to be electronically filed through the New York State

Courts E-Filing (NYSCEF) system. Attorneys are expected to familiarize themselves

with NYSCEFprocedures at http://iapps.courts.state.ny.us/nyscef/Login. For more

information on e-filing rules, parties may also visit:

http://www.nycourts.gov/courts/1jd/supctmanh/e-filing.shtml.

2. All e-filed documents must be text-searchable. All electronically-submitted memoranda

oflaw must contain bookmarks, pursuant to Commercial Division Rule 6. Submission of

documents containing hyperlinks is required.

3. Hyperlinks: The parties shall serveall documents associated with a motion or order to

show cause on the dates required for their submission and service. The parties shall also

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on such dates upload the exhibits to NYSCEF (i.e., so that there is a document to

hyperlink to). Memorandaof law and corresponding affidavits thathyperlink to the

exhibits previously uploaded may be e-filed on the return date.

4. “eTrack” is a case tracking service that enables parties to track active Civil Supreme

Courtcases and to receive notice of scheduled appearances. Parties and/or their counsel

must beregistered for the eTrack service for all Part 53 cases. To register or log-in,

please visit: http://iapps.courts.state.ny.us/webcivil/etrackLogin.

COMMUNICATIONS TO PART 53

1. Justice Borrok does not accept any letters, documents, or papers by e-filing, mail, or

facsimile unless expressly permitted by these Practice Rules, Commercial Division Rules

2and 18, or by prior approval of the Court. To the extent that the parties seek an

unscheduledconference, they may make such request by email to Chambers (sfc-

part53@nycourts.gov)brieflystating the reason for such conference, which the Court

may grant,if appropriate.

2. As indicated above, all inquiries concerning scheduling, technology and case status shall

be emailed to the Part Clerk (sfc-part53-clerk@nycourts.gov). All other inquiries shall

be emailed to Chambers (sfc-part53@nycourts.gov). Please includethe index number.

3. In an effort to minimize the time and expense of litigation, Part 53 encourages the use of

email where appropriate to make a joint submission in lieu of an appearance for an in-

court status conference following a preliminary conference where all discovery deadlines

are being met and a conference is scheduled only for either (i) submission of a deposition

schedule or (ii) to request an adjournment of an appearance to correspond with oral

argument on motion.

ADJOURNMENTS

1. All adjournments (oral argument on motions, conferences, trials) require prior Court approval.

Ex parte applications for adjournments will not be considered.

2. As discussed above, requests to adjourn an appearance(conference or oral argument) must be

directed to Chambers. Adjourned motions shall be adjourned to the Court’s next available

date. Absent emergency, applications for adjournment must be made at least one weekin

advance of the scheduled appearance.

3. To adjourn a motion that is in the Submissions Part (Room 130):

a. Ifthe parties wish to adjourn amotion the first time the motion is on the Calendar in the

Submissions Part,for less than 30 days, the parties may do so by stipulation without an

order from the Court. The stipulation must be electronically filed and also filed in the

Submissions Part on the return date of the motion. The stipulation must clearly indicate

the relevant motion sequence number.

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b. Ifthe parties wish to adjourn amotion other than the first time the motion is on the

calendarin the Submissions Part or for more than 30 days from the original return date,

then the parties must submit a stipulation of adjournment to the Court for approval.

i. Parties must deliver the proposed stipulation to the Court by electronic

filing and email to Chambers.

ii. If approved, the So-Ordered version of the stipulation will be

electronically filed, so that the parties may retrieve the signed order from

the electronic filing system and present it to the Submissions Part on the

return date.

4. To adjourn a hearing or trial, the parties must contact Chambers via email (sfc-

part53@nycourts.gov) with all counsel of record cc’ed on the email.Absent emergency,

applications for adjournments shall be made at least two weeks in advance of the scheduled

hearing or trial.

INITIAL DISCLOSURES

1. Required Disclosures.

a. Initial Disclosures.

i. In General. Except as otherwise stipulated or ordered by the court, a party must,

without awaiting a discovery request, provide to the other parties:

A. the name and, if known, the address and telephone number of each

individual that the disclosing party intends to use to support its claims or

defenses, unless such use is solely for impeachment, together with a brief

description of the information expected to be elicited from such

individual;

B. a copy of all documents, electronically stored information, or other

tangible things referred, but not attached, to in the pleadings; and

C. a computation of each category of damages claimed by the disclosing

party.

ii. Time for Making Initial Disclosures.

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A. In General. A party must make the initial disclosures within 14 days after

the parties’ consultation prior to the preliminary conference as required in

Rule 8, unless a different time is set by stipulation or court order, or unless

a party objects during the preliminary conference that initial disclosures

are not appropriate in the action and states the grounds for any objection to

production in the proposed discovery plan. In ruling on the objection(s),

the court must determine what initial disclosures, if any, are to be made

and must set the time for making the initial disclosures.

B. For Parties Served or Joined Later. A party that is first served or otherwise

joined after the consultation must make the initial disclosures within 30

days after being served or joined, unless a different time is set by

stipulation or court order.

C. For Disclosures Required by CPLR § 3101(f). All disclosures required by

CPLR 3101(f) must be made by the earlier of: (a) 14 days after the Rule 8

consultation; or (b) 90 days after service of an answer.

b. Failure to utilize good faith in making the initial disclosures may result in an award to the

non-disclosing party of attorney’s fees and costs occasioned by such failure.

2. Form of Initial Disclosures. Unless otherwise ordered by the court, all initial disclosures under

Rule 11-h must be in writing, signed, and served.

3. Basis for Initial Disclosures; Unacceptable Excuses. A party must make its initial disclosures

based on the information then reasonably available to it. A party is not excused from making

its initial disclosures because it has not fully investigated the case or because it challenges the

sufficiency of another party's initial disclosures or because another party has not made its

initial disclosures.

CONFERENCES AND DISCOVERY DISPUTES

1. Only attorneys who are thoroughly familiar with the case may appear for a conference.

Attorneys should have available all signed copies of all prior decisions, orders and stipulations

(both substantive and discovery related) at the conference.

2. Counsel and litigants must follow the directions below when appearing for a preliminary,

compliance, or status conference.

a. Counsel for all parties must consult prior to a preliminary or compliance

conference about: (i) the resolution of the case; (ii) discovery and any other

issues to be discussed at the conference; and (iii) the use of alternative dispute

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resolution to resolve all or some of the issues of the litigation (Commercial

Division Rule 8).

b. Counsel maysubmit a proposed status conference order prior to arriving in the

courtroom or appearing virtually for the conference. Any disputes will be

resolved at the conference.

3. Counsel must meet and confer to resolve any discovery disputes, as discussed below.

4. If parties wish to request a preliminary conference, they should do so by email to the Part Clerk

(sfc-part53-clerk@nycourts.gov).

MOTION PRACTICE

1. All substantive motions with opposition maybe scheduled for oral argument by the Court. All

papers must be e-filed at least two weeks prior to the oral argument date except as otherwise

permitted by the Court.

2. Unless otherwise indicated by the Court, summary judgment motions must be filed no later

than60 days from the filing of the note of issue. Rule 19-A statements will not be accepted on

summary judgment motions unless it is a Joint Statement of Undisputed Facts. If there are no

facts to which the parties agree, the parties maynot submit a Rule 19-A statement.

3. No cross-motions for summary judgment will be permitted.

4. Orders to Show Cause with requests for temporary restraining orders, including requests for a

temporary stay of the action, will generally not be heard ex parte(see 22 NYCRR 202.7[f]; 22

NYCRR 202.70, Rule 20).

5. Except for discovery motions, no prior permission is required prior to making a motion.

Justice Borrok does not accept Commercial Division Rule 24 letters unless expressly

requested. Discovery-related motions are strongly discouraged. Prior to making any such

motion, the parties must meet and confer in good faith to try to resolve their dispute. In the

event the dispute is not resolved by the meet and confer, the parties may email Part 53 a

request to make a discovery motion and/or for a virtual or in-person conference to resolve the

dispute. Discovery motions shall be brought by Order to Show Cause. No reply briefing is

permitted.

6. Absent a motion demonstrating appropriate, unusual, or compelling circumstances warranting

a stay, the filing of a dispositive motion does not stay discovery.

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7. Pro hac vice motions shall be made by Order to Show Cause and must include a proposed

order and an affidavit in support from a member of the Bar of the State of New York and an

affidavit of the applicant and a recent certificate of good standing from the applicant. The

affidavit of the applicant must advise the Court as to how many times the applicant has been

admitted in New York pro hac vice, whether that admission pro hac vice has been vacated, and

whether the applicant has ever been or is presently subject to a disciplinary proceeding (see

exhibit A, annexed to these Part Rules, for the form of the proposed order for pro hac vice

applications). If there is no opposition to the motion, the movant should include a stipulation

indicating as much.

8. Requests for commissions shall be made by Order to Show Cause.

9. Word limits specified in Commercial Division Rule 17 will be strictly enforced, unless

permission to expand the word limits is granted by the Court in advance of the filing of the

papers. Requests to modify word limits must be made at least two weeks before the motion

papers are to be filed.

10. All memoranda of law must include a Table of Contents and Table of Authorities.

11. Each exhibit must be e-filed under its own document number and must include a short label

identifying the nature of the exhibit (e.g., Exhibit A, Affidavit of John Doe; Exhibit B,

Employment Agreement between A & B, dated XX/XX/XXXX).

AMICUS CURIAE RELIEF

1. Any non-party seeking to file an amicus brief in the Commercial Division must first obtain

permission by motion.

a. Motions for amicus curiae relief.

i. Motions to be brought on by order to show cause. Any motion for amicus curiae

relief shall be brought by an order to show cause unless the court orders otherwise.

ii. Motion papers. Movant shall file its proposed amicus brief with its motion papers.

The court shall set the matter for hearing as soon as practicable so as not to delay

the proceedings to which it relates.

iii. Criteria. Movant shall:

A. demonstrate that the parties are not capable of a full and adequate

presentation and that movant could remedy this deficiency; movant could

identify law or arguments that might otherwise escape the court's

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consideration; or the proposed amicus brief otherwise would be of

assistance to the court;

B. include a statement of the identity of the movant and its interest in the

matter; and

C. include a statement indicating whether:

1. a party’s counsel contributed content to the brief or participated in

the preparation of the brief in any other manner;

2. a party or a party’s counsel contributed money that was intended to

fund preparation or submission of the brief; and

3. a person or entity, other than movant or movant’s counsel,

contributed money that was intended to fund preparation or

submission of the brief and, if so, identifying each such person or

entity.

iv. Responding papers. Any party may serve and file papers in response to or in

opposition to the motion to file an amicus brief, as directed by the court in its order

to show cause.

v. A motion for leave to file an amicus brief will be denied where granting it would

cause recusal of the assigned justice or undue delay.

vi. The court shall direct in any order granting leave for an amicus brief the time and

manner of submission of any responsive briefs.

vii. Except as ordered otherwise by the court, amicus briefs are subject to the length

limitations for reply briefs and to the requirements of a word-count certification set

forth in Commercial Division Rule 17.

ALTERNATIVE DISPUTE RESOLUTION

1. The parties are encouraged to identify as early as possible any case where ADR would be

appropriate. In addition, andif at any point, the parties decide that they would benefit from the

Commercial Division ADR program, they should write a joint letter to the Court asking to be

referred to ADR. In that letter, they should state whether they prefer discovery to be stayed or

continuedduring the mediation process.

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2. The Court may also order parties to the Commercial Division ADR program without the

parties’ request or consent.

3. For more information regarding the ADR program, please visit:

http://www.nycourts.gov/courts/comdiv/ny/ADR_overview.shtml.

CONFIDENTIALITY ORDER / SEALING DOCUMENTS

1. In the interest of reducing unnecessary litigation costs, any order regarding the confidential

exchange of information must adhere to the Proposed Stipulation and Order for the Production

and Exchange of Confidential Information (the Model Form), which is attached as Exhibit B

to these Practice Rules and the Commercial Division Rules.

2. Justice Borrok is mindful that minor additions/deletions/edits to the Model Form will only

drive up litigation costs. Therefore, if the parties believe there is good cause to depart from the

Model Form, they must submit the following:

a. The proposed stipulation and order;

b. A red-lined version of the proposed stipulation and order, indicating any

departures from the Model Form; and

c. A party affirmation establishing good cause for any proposed departures from

the Model Form.

Amended Model Forms that are not accompanied by the red-lined version and affidavit will

not be approved.

3. Document Sealing and Redacting Procedures. Parties may not stipulate to seal or redact

documents or information. Motions to seal and/or redact must be made by order to show cause

in compliance with subdivisions (a), (b), (c) and (e) below.

Sealing entire documents or categories of documents is a drastic remedy. The court must

fashion narrowly tailored orders to seal or redact certain highly sensitive information to

maintain the transparency of the court’s affairs and balance the interests of the public and the

parties. The court strongly encourages parties to consider making motions to redact specific,

protectable information in the applicable documents.

a. Motions to Seal and/or Redact. A movant must submit a memorandum of law statingthe

basis of the purported good cause to seal or redact each document or piece ofinformation.

A movant must also submit a sealing/redacting spreadsheet that clearlyidentifies: (1) each

document sought to be sealed or redacted with the correspondingNYSCEF Docket

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Number; (2) the categorization of each document (see [i]-[ii]below); (3) whether movant

seeks to seal or redact the document; (4) the proposedgood faith basis to seal or redact; and

(5) citations to applicable authority supportinggood cause to seal/redact.

i. A movant should identify specific proposed categories in the spreadsheet andlegal

memoranda to facilitate issuance of a workable and efficient order.Vague

categories, such as “confidential business information” or “proprietarytrade

information,” are not generally adequate.

ii. Examples of specific categories include “third-party borrower personal identifying

information,” “pricing terms for nonparty customers,” “investment methodologies,”

“capital contribution information of private entities,” and “strategies for structuring,

collateralizing, and marketing structured products.”

iii. Except under extraordinary circumstances, the court will not permit parties to seal or

redact any pleading. The court may, however, consider narrowly tailored redactions

to exhibits attached to pleadings.

b. Proposed Sealed or Redacted Documents. A movant must file documents to be sealed or

redacted on NYSCEF as follows:

i. Counsel must file every document sought to be sealed or redacted on NYSCEF

under temporary seal in completely unredacted form (Confidential Chamber’s Copy)

with all proposed redactions highlighted with yellow.

ii. Counsel must also e-file a public copy of each document on NYSCEF with only the

proposed redactions blacked out.

c. Opposing Motions to Seal/Redact. The parties must meet and confer to resolve any

disputes before filing opposition to an application to seal/redact.

d. Good Cause Found. Upon a finding of good cause, the court will issue a written order

directing the party or parties to seal or redact documents and/or specific information in the

documents filed with the motion. The court will further order the party or parties to apply

those written findings of good cause to any documents containing the same specific

categories of information if or when other documents are later filed in the same action to

reduce or eliminate the need for future motions to seal or redact as set forth below in

subsection (e).

e. No Successive Motions to Seal/Redact. The court will not entertain successive motions to

seal documents/information that the court previously permitted to be redacted or sealed;

instead, the parties shall submit a proposed sealing order to the court identifying by the new

NYSCEF number(s) only that the parties wish to seal or redact. The proposed order shall

include a chart with the original NYSCEF number(s) corresponding to the new NYSCEF

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number(s) that the parties wish to seal or redact. Any sealing order MUST be followed by

a Notification for Sealing in Electronically Filed Case to give the County Clerk notice.

4. Toe-file documents under seal, please follow the procedures set forth by the County Clerk,

https://www.nycourts.gov/LegacyPDFS/courts/1jd/supctmanh/Efil-protocol.pdf

TRIALS / EVIDENTIARY HEARINGS

1. General:

a. Following the filing of note of issue and after the adjudication of dispositive motions, an

initial pre-trial conference shall be scheduled with the Court to discuss a schedule for the

filing of all trial documents in the virtual evidence room on NYSCEF (the “Evidence” tab

in the e-file docket), any motions in limine, a joint exhibit list indicating which exhibits are

to be admitted on stipulation and which exhibits are subject to objection (and the basis for

the objection), and all other pre-trial submissions (including any proposed jury

questionnaires, voir dire statements, verdict sheets, and jury instructions).

b. Trial Submissions include marked pleadings,all prior decisions in the case, any notices to

admit, with responses,copies of transcripts of depositions intended for use at trial, all trial

exhibits, potential verdict sheet (in the case of a jury trial), direct testimony affidavits (in

the case of a bench trial), potential jury instructions (in the case of a jury trial) which

should be based on the most current version of the PJI and potential voir dire statements (in

the case of a jury trial) and questions the parties submit to the Court for consideration (in

the case of a bench trial).

c. Motions in limine are to be brought by Order to Show Cause.

d. Following the resolution of all motions in limine a pre-trial conference will be scheduled

where trial will be scheduled and the parties shall provide a detailed schedule with the

Court (including which witnesses will be testifying on which days).

e. All trials are timed trials where the parties shall agree to a total number of hours for trial.

The parties shall each assign a time keeper which time keepers shall confer at the

conclusion of each day at trial. Any disputes as to time elapsed shall be brought to the

Court’s attention the following morning. Any dispute not brought to the Court’s attention

by the challenging party (i.e, the party who believes more time was used) is waived.

f. The parties are to stipulate to all facts and documents not in dispute prior to trial and

marked for admission. However, all exhibits (even those admissible without objection) are

not admitted until used by the parties at trial.

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g. All requests to set up electronic media and audiovisual equipment in the Courtroom shall

be directed to the Part Clerk in advance of trial.

h. Given the financial and other burdens of trial, witnesses may testify remotely in both bench

trials and jury trials upon application to the Court.

2. Jury Trials:

a. In the case of a jury trial, the Courtconducts voir dire(except if otherwise indicated by the

Court).

b. The Court will consider any proposed jury questionnaires submitted by counsel and any

questions counsel would like the Court to query a particular juror about. The Court

reserves the right to ask the question in the manner proposed by counsel, in a different

manner or to refrain from asking the question at all if the Court deems the question

improper.

c. Counsel shall submit a brief voir direstatement to the Court as part of its pre-trial

submissions for the Court’s consideration. The voir dire statementshould include a brief

summary of what the claims/counter-claims are in the case, what the defenses are, what the

damages sought are, who the witnesses are, who the lawyers are, and any other relevant

information such that the Court gives sufficient information to potential jurors so that the

Court can determine whether a potential juror is inappropriate to sit on the jury of the case

at issue.

d. The parties shall agree to a total number of peremptory challenges prior to the pretrial

conference. If the parties can not agree, the Court shall decide the appropriate number of

peremptory challenges.

e. During jury selection, if both sides have exercised a peremptory challenge against the same

potential juror, that potential juror shall not serve on the jury and neither side will be

charged with the exercise of a peremptory challenge.

f. Following empanelment of the jury, counsel should assume that the trial will begin

immediately.

g. Post-trial briefs. Two weeks after receiving the conclusion of a jury trial, the parties are to

file any motion to set aside the verdict by order to show cause of up to 7,000 words

(excluding caption, table of contents, table of authorities, and signature blocks). Opposition

papers shall be filed two weeks thereafter of up to 4,200 words (subject to the same

exclusions). No reply briefing is permitted.

In addition to filing on NYSCEF, copies of the post-trial briefs in Word format should be

emailed to Chambers (sfc-part53@nycourts.gov).

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3. Bench Trials:

a. Direct Testimony: The Court may hear direct testimony live or by direct testimony affidavit.

b. If the Court is to hear the testimony live and not by direct testimony affidavit, the parties shall

notify the Court at the pretrial conference to ensure that the timed trial schedule accounts for

live testimony.

c. Affidavits shall be reasonable in length and scope and,in any event,shall not exceed fifteen

(15) pages including all exhibits to any such affidavits absent priorleave of the Court. Upon

being called at trial, a witness shall swear to the contents of his/her affidavit, the Court shall

hear opposing counsel’s objections (if any) to the direct testimony followed by cross

examination and re-direct, if any, of the witness.

d. A bench trial may be held virtually in the discretion of the Court.

e. Post-Trial Briefs. Two weeks after the conclusion of a non-jury trial, the parties are to submit

post-trial briefs of up to 7,000 words (excluding caption, table of contents, table of authorities,

and signature blocks). The post-trial briefs should be organized as follows:

a. Preliminary Statement (optional)

b. Proposed Findings of Fact

c. Proposed Conclusions of Law, separately for each cause of action (claim, counterclaim,

crossclaim, and third-party claim)

d. Conclusion –including specific relief sought for each cause of action

e. Proposed Judgment.

In addition to filing on NYSCEF, copies of the post-trial briefs in Word format should be

emailed to Chambers (sfc-part53@nycourts.gov).

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EXHIBIT A: FORM OF PROPOSED ORDER FOR PRO HAC VICEAPPLICATIONS

__________________________, Esq., having applied to this Court for admission pro hac viceto

represent [plaintiff/defendant]_______________________ in this action, and applicant having

submitted an affidavit of _ , Esq., a member of the Bar of the State of New

York and attorney of record herein for _______________________, an affidavit of the applicant dated

____________________, and a Certificate in Good Standing from the jurisdiction in which the

applicant was admitted to the practice of law, and the Court having reviewed the foregoing

submissions and due deliberation having been had, it is now therefore

ORDERED that the motion is granted and ______________________, Esq. is permitted to

appear and to participate in this action on behalf of ___________________________; and it is further

ORDERED that he/she shall at all times be associated herein with counsel who is a member in

good standing of the Bar of the State of New York and is attorney of record for the party in question

and all pleadings, briefs and other papers filed with the Court shall be signed and filed by the attorney

of record, who shall be held responsible for such papers and for the conduct of this action; and it is

further

ORDERED that, pursuant to Section 520.11 of the Rules of the Court of Appeals and Section

602.2 of the Rules of the Appellate Division, First Department, the attorney hereby admitted pro hac

viceshall abide by the standards of professional conduct imposed upon members of the New York

Bar, including the Rules of the Courts governing the conduct of attorneys and the Disciplinary Rules

of the Code of Professional Responsibility; and it is further

ORDERED that he/she shall be subject to the jurisdiction of the Courts of the State of New

York with respect to any acts occurring during the course of his/her participation in this matter; and it

is further

ORDERED that counsel shall notify the Court immediately of any matter or event in this or

any other jurisdiction which affects his/her standing as a member of the Bar.

Dated:____________

ENTER:

________________________________

J.S.C.

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EXHIBIT B: FORM OF PROPOSED STIPULATION AND ORDER FOR THE

PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF _____________________________

---- ---- --- --- --- ---- ---- --- --- --- ---- ---X

_________________________, Index No. _________

Plaintiff,

-against- STIPULATION AND ORDER

FOR THE PRODUCTION AND

EXCHANGE OF

CONFIDENTIAL

INFORMATION

_________________________,

Defendant.

---- ---- --- --- --- ---- ---- --- --- --- ---- ---X

This matter having come before the Court by stipulation of plaintiff ________________

and defendant ________________ (individually “Party” and collectively “Parties”)1 for the entry

of a protective order pursuant to CPLR 3103(a), limiting the review, copying, dissemination and

filing of confidential and/or proprietary documents and information to be produced in the course of

discovery in this matter to the extent set forth below; and the Parties, by, between and among their

respective counsel, having stipulated and agreed to the terms set forth herein, and good cause having

been shown;

IT IS hereby ORDERED that:

1. This Stipulation is being entered into to facilitate the production, exchange and discovery

of documents and information that merits confidential treatment (hereinafter the

“Documents” or “Testimony”).

2. Any party may designate Documents produced, or Testimony given, in connection with

this action as “confidential,” either by notation on each page of the Document so

designated, statement on the record of the deposition, or written advice to the respective

counsel for all affected parties, or by other appropriate means.

1Party and Parties are signatories to this Stipulation and Order for the Production and Exchange

of Confidential Information, and party and parties are any individuals or entities obligated to

produce documents or give testimony in connection with this action.

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3. As used herein:

a. “Confidential Information” shall mean all Documents and Testimony, and all

information contained therein, and other information designated as confidential, if

such Documents or Testimony contain trade secrets, proprietary business

information, competitively sensitive information, or other information the

disclosure of which would, in the good faith judgment of the party designating the

material as confidential, be detrimental to the conduct of that party’s business or the

business of any of that party’s customers or clients.

b. “Producing Party” shall mean the party producing Confidential Information in

connection with depositions, document production or otherwise, or the party

asserting the confidentiality privilege, as the case may be.

c. Receiving Party” shall mean the party receiving Confidential Information in

connection with depositions, document production or otherwise.

4. The Receiving Party may, at any time, notify the Producing Party in writing that the

Receiving Party does not concur in the designation of a document or other material as

Confidential Information. If the Producing Party does not agree to declassify such

document or material within seven (7) days of the written notification, the Receiving Party

may move before the Court for an order declassifying those documents or materials. If no

such motion is filed, such documents or materials shall continue to be treated as

Confidential Information. If the motion is filed, the documents or other materials shall be

deemed Confidential Information unless and until the Court rules otherwise. On such a

motion, the Producing Party bears the burden of establishing the propriety of its

designation of documents or information as Confidential Information.

5. Except with the prior written consent of the Producing Party or by Order of the Court,

Confidential Information shall not be furnished, shown or disclosed to any person or

entity except to:

a. personnel of plaintiff or defendant actually engaged in assisting in the preparation

of this action for trial or other proceeding herein and who have been advised of their

obligations hereunder;

b. counsel for the Parties to this action and their associated attorneys, paralegals and

other professional and non-professional personnel (including support staff and

outside copying services) who are directly assisting such counsel in the

preparation of this action for trial or other proceeding herein, are under the

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supervision or control of such counsel, and who have been advised by such

counsel of their obligations hereunder;

c. expert witnesses or consultants retained by the Parties or their counsel to furnish

technical or expert services in connection with this action or to give testimony with

respect to the subject matter of this action at the trial of this action or other

proceeding herein; provided, however, that such Confidential Information is

furnished, shown or disclosed in accordance with paragraph 7 hereof;

d. the Court and court personnel;

e. an officer before whom a deposition is taken, including stenographic reporters and

any necessary secretarial, clerical or other personnel of such officer;

f. trial and deposition witnesses, if furnished, shown or disclosed in accordance with

paragraphs 9 and 10, respectively, hereof; and

g. any other person agreed to by the Producing Party.

6. Confidential Information shall be utilized by the Receiving Party and its counsel only for

purposes of this litigation and for no other purposes.

7. Before any disclosure of Confidential Information is made to an expert witness or

consultant pursuant to paragraph 5(c) hereof, counsel for the Receiving Party shall

provide the expert’s written agreement, in the form of Exhibit 1 attached hereto, to

comply with and be bound by its terms. Counsel for the Receiving Party obtaining the

certificate shall supply a copy to counsel for the other Parties at the time designated for

expert disclosure, except that any certificate signed by an expert or consultant who is not

expected to be called as a witness at trial is not required to be supplied.

8. All depositions shall presumptively be treated as Confidential Information and subject to

this Stipulation during the deposition and for a period of fifteen (15) days after a

transcript of the deposition is received by counsel for each of the parties. At or before the end

of such fifteen-day period, the deposition shall be classified appropriately.

9. Should the need arise for any party to disclose Confidential Information during any

hearing or trial before the Court, including through argument or the presentation of

evidence, such party may do so only after taking such steps as the Court, upon motion of

the Producing Party, shall deem necessary to preserve the confidentiality of such

Confidential Information.

10. This Stipulation shall not preclude counsel for any Party from using during any

deposition in this action any Documents or Testimony which has been designated as

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Confidential Information under the terms hereof. Any deposition witness who is given

access to Confidential Information shall, prior thereto, be provided with a copy of this

Stipulation and shall execute a written agreement, in the form of Exhibit 1 attached

hereto, to comply with and be bound by its terms. Counsel for the Party obtaining the

certificate shall supply a copy to counsel for the other parties to the action. In the event

that, upon being presented with a copy of the Stipulation, a witness refuses to execute the

agreement to be bound by this Stipulation, the Court shall, upon application, enter an

order directing the witness’s compliance with the Stipulation.

11. A Party may designate as Confidential Information subject to this Stipulation any

document, information, or deposition testimony produced or given by any non-party to

this case, or any portion thereof. In the case of Documents produced by a non-party,

designation shall be made by notifying all counsel in writing of those documents which

are to be stamped and treated as such at any time up to fifteen (15) days after actual

receipt of copies of those documents by counsel for the Party asserting the confidentiality

privilege. In the case of deposition Testimony, designation shall be made by notifying all

counsel in writing of those portions which are to be stamped or otherwise treated as such

at any time up to fifteen (15) days after the transcript is received by counsel for the Party

asserting the confidentiality privilege. Prior to the expiration of such fifteen (15) day

period (or until a designation is made by counsel, if such a designation is made in a

shorter period of time), all such Documents and Testimony shall be treated as

Confidential Information.

12. (a) A Receiving Party who seeks to file a motion with the Court using Documents or

Testimony which have previously been designated as comprising or containing

Confidential Information, and/or any pleading, brief or memorandum which reproduces,

paraphrases or discloses Confidential Information, shall, twenty-one (21) days prior to

filing any motion, provide the parties with written notice of its intent to file such material

with the Court, so that the Producing Party may file by Order to Show Cause a motion to

seal such Confidential Information. A party seeking to file a motion with the Court using

any Documents or Testimony that it has designated as confidential must also move to seal

such Confidential Information. The motion to seal the Confidential Information must be

filed fourteen (14) days prior to filing the motion, and the Confidential Information shall

not be filed until the Court renders a decision on the motion to seal.

(b) Ifthe motion to seal is granted, the filing party shall ensure that all documents that

are the subject of the order to seal are filed in accordance with the procedures that govern the

filing of sealed documents on the NYSCEF system.

(c) All pleadings, briefs or memoranda which reproduces, paraphrases or discloses

any documents which have previously been designated by a party as comprising or

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containing Confidential Information, shall identify such documents by the production

number ascribed to them at the time of production.

13. Any person receiving Confidential Information shall not reveal or discuss such

information to or with any person not entitled to receive such information under the terms

hereof.

14. Any document or information that may contain Confidential Information that has

been inadvertently produced without identification as to its “confidential” nature as provided in

paragraphs 2 and/or 11 of this Stipulation, may be so designated by the party asserting the

confidentiality privilege by written notice to the undersigned counsel for the Receiving Party

identifying the document or information as “confidential” within a

reasonable time following the discovery that the document or information has been

produced without such designation.

15. In connection with the review of electronically stored information and hard copy

documents for production (the “Documents Reviewed”) the Parties agree as follows:

a. to implement and adhere to reasonable procedures to ensure Documents

Reviewed that are protected from disclosure pursuant to CPLR 3101(c),

3101(d)(2) and 4503 (“Protected Information”) are identified and withheld from

production.

b. if Protected Information is inadvertently produced, the Producing Party shall take

reasonable steps to correct the error, including a request to the Receiving Party for its

return.

c. upon request by the Producing Party for the return of Protected Information

inadvertently produced the Receiving Party shall promptly return the Protected

Information and destroy all copies thereof. Furthermore, the Receiving Party shall not

challenge either the adequacy of the Producing Party’s document review

procedure or its efforts to rectify the error, and the Receiving Party shall not assert that

its return of the inadvertently produced Protected Information has caused it to suffer

prejudice.

16. Extracts and summaries of Confidential Information shall also be treated as confidential

in accordance with the provisions of this Stipulation.

17. Theproduction or disclosure of Confidential Information shall in no way constitute a

waiver of each Producing Party’s right to object to the production or disclosure of other

information in this action or in any other action.

18. This Stipulation shall continue to be binding after the conclusion of this litigation except

(a) that there shall be no restriction on documents that are used as exhibits in Court

(unless such exhibits were filed under seal); and (b) that a Receiving Party may seek the

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written permission of the Producing Party or further order of the Court with respect to

dissolution or modification of any part of the Stipulation. The provisions of this

Stipulation shall, absent prior written consent of both parties, continue to be binding after the

conclusion of this action.

19. Nothing herein shall be deemed to waive any privilege recognized by law or shall be

deemed an admission as to the admissibility in evidence of any facts or documents

revealed in the course of disclosure.

20. Within sixty (60) days after the final termination of this litigation by settlement or

exhaustion of all appeals, all Confidential Information produced or designated and all

reproductions thereof, shall be returned to the Producing Party or shall be destroyed. In

the event that any Receiving Party chooses to destroy physical objects and documents,

such Party shall certify in writing within sixty (60) days of the final termination of this

litigation that it has undertaken its best efforts to destroy such physical objects and

documents, and that such physical objects and documents have been destroyed to the best of its

knowledge. Notwithstanding anything to the contrary, counsel of record for the

Parties may retain one copy of documents constituting work product, a copy of pleadings,

motion papers, discovery responses, deposition transcripts and deposition and trial

exhibits. This Stipulation shall not be interpreted in a manner that would violate any rules of

professional conduct. Nothing in this Stipulation shall prohibit or interfere with the ability of

counsel for any Receiving Party, or of experts specially retained for this case, to represent any

individual, corporation, or other entity adverse to any party or their

affiliate(s) in connection with any other matters.

21. This Stipulation may be changed by further order of this Court, and is without prejudice

to the rights of a Party to move for relief from any of its provisions, or to seek or agree to

different or additional protection for any particular material or information.

[FIRM] [FIRM]

By: ________________________ By:

________________________

___________________________

___________________________

___________________________

___________________________

New York, NY ______________ New York, NY

______________

Tel.: _______________________ Tel.:

_______________________

Attorneys for Plaintiff Attorneys for Defendant

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Dated: __________________

SO ORDERED _____________________________

J.S.C.

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EXHIBIT “1”

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF _____________________________

---- ---- --- --- --- ---- ---- --- --- --- ---- ---X

_________________________, Index No. _________

Plaintiff,

-against- AGREEMENT TO RESPECT

CONFIDENTIAL MATERIAL

_________________________,

Defendant.

---- ---- --- --- --- ---- ---- --- --- --- ---- ---X

I, ___________________________________________, state that:

1. My address is

___________________________________________________________.

2. My present employer is

____________________________________________________.

3. My present occupation or job description is

____________________________________.

4. I had received a copy of the Stipulation for the Production and Exchange of

Confidential Information (“Stipulation”) entered in the above-entitled action on

_________________.

5. I have carefully read and understand the provisions of the Stipulation.

6. I will comply with all of the provisions of the Stipulation.

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7. I will hold in confidence, will not disclose to anyone not qualified under the

Stipulation, and will use only for purposes of this action, any Confidential Information

that is disclosed to me.

8. I will return all Confidential Information that comes into my possession, and documents

or things that I have prepared relating thereto, to counsel for the party by whom I am

employed or retained, or to counsel for whom I received the Confidential Information.

9. I hereby submit to the jurisdiction of this court for the purpose of enforcement of the

Stipulation in this action.

Dated: _____________ ____________________________

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