1045-00004 · Client 1045 · Discovery/Document Production

stipulated-protective-order.docx DOCUMENT Litigation

13 / 35 ← → ✕

Contract analysis Extract to table

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK COMMERCIAL DIVISION

BELMONT RIDGE BANK NA,

Plaintiff/Counterclaim Defendant,

— against —

TRITON HARBOR INDUSTRIES, LLC, MARCUS J. KAPPEL, and ELAINE D. KAPPEL,

Defendants/Counterclaim Plaintiffs.

Index No. 654871/2024

Assigned Justice: Hon. Althea Marchetti

STIPULATED PROTECTIVE ORDER GOVERNING CONFIDENTIAL DISCOVERY MATERIALS

Dated: December 20, 2024

PREAMBLE AND RECITALS

WHEREAS, this action was commenced on August 12, 2024, by Plaintiff/Counterclaim Defendant Belmont Ridge Bank NA ("BRB" or "Plaintiff") by the filing of a Summons and Verified Complaint in the Supreme Court of the State of New York, County of New York, Commercial Division, bearing Index No. 654871/2024;

WHEREAS, Defendants/Counterclaim Plaintiffs Triton Harbor Industries, LLC ("Triton Harbor"), Marcus J. Kappel, and Elaine D. Kappel (collectively, "Defendants" or "Counterclaim Plaintiffs") filed their Verified Answer with Affirmative Defenses and Counterclaims on October 18, 2024;

WHEREAS, BRB is represented in this action by Calderwood & Harkness LLP, 600 Lexington Avenue, 30th Floor, New York, New York 10022, through the attorneys Linda Osei, Esq., Priya Anand, Esq., Carlos Espinoza, Esq., and Hannah Brinkley, Esq.;

WHEREAS, Triton Harbor and Marcus J. Kappel and Elaine D. Kappel (collectively, the "Kappels") are represented in this action by Kestrel Voss & Huang LLP, 780 Third Avenue, 24th Floor, New York, New York 10017, through the attorneys Theodore Huang, Esq., and Natasha Orlov, Esq.;

WHEREAS, in the course of discovery, the parties anticipate producing documents and information that contain confidential, proprietary, and commercially sensitive information, including but not limited to BRB's internal credit files, Special Assets Group memoranda, credit committee minutes, internal strategy documents, loan-loss reserve classifications, collateral appraisals, and financial information of Triton Harbor Industries, LLC and its principals;

WHEREAS, the approximate universe of documents under review for production by BRB comprises approximately 34,000 documents, including electronically stored information, and Triton Harbor will be producing its own financial records, communications with Mercer Tidwell & Associates LLC (its restructuring advisor), and related documents;

WHEREAS, the parties, by and through their respective counsel, have conferred in good faith and have agreed to the terms of this Stipulated Protective Order (the "Order") to facilitate the free exchange of discovery materials while protecting the legitimate confidentiality interests of both parties and relevant non-parties;

WHEREAS, this Order is entered pursuant to CPLR § 3103(a) and the applicable Rules of the Commercial Division of the Supreme Court of the State of New York;

NOW, THEREFORE, the Court, having reviewed the parties' stipulation and the representations of counsel, and finding good cause to enter this Order for the protection of confidential and proprietary information, hereby SO ORDERS as follows:

SECTION 1: DEFINITIONS

As used in this Order, the following terms shall have the meanings set forth below:

1.1 "Producing Party" shall mean any party or non-party that produces, provides, or discloses discovery Material in this action, whether voluntarily or pursuant to compulsory process, including but not limited to responses to document requests, interrogatories, requests for admission, deposition testimony, and subpoenas duces tecum.

1.2 "Receiving Party" shall mean any party or person who receives discovery Material designated as Confidential or Highly Confidential — Attorneys' Eyes Only pursuant to the terms of this Order.

1.3 "Discovery Material" shall mean all documents, electronically stored information ("ESI"), interrogatory responses, deposition testimony, responses to requests for admission, tangible items, and any other material produced, disclosed, or provided in discovery in this action, regardless of the medium or format in which such material exists. The term "Discovery Material" includes all copies, excerpts, summaries, abstracts, compilations, indices, and descriptions thereof, whether in original or reproduced form, and whether created before or during the course of this litigation.

1.4 "Confidential" shall mean the first tier of protection under this Order. Discovery Material may be designated as "Confidential" where the Producing Party determines in good faith that the material contains confidential business, financial, commercial, or proprietary information, the disclosure of which to persons outside the categories of Qualified Persons specified in Section 4 could cause competitive harm, economic harm, or other prejudice to the Producing Party or the person or entity to whom the information pertains. The category of "Confidential" material includes, but is not limited to, borrower financial statements, loan agreements and related credit documentation, credit memoranda, internal correspondence regarding the lending relationship between BRB and Triton Harbor, collateral appraisals and valuation reports, and personal financial information of individuals.

1.5 "Highly Confidential — Attorneys' Eyes Only" ("HC-AEO") shall mean the second and highest tier of protection under this Order. Discovery Material may be designated as "Highly Confidential — Attorneys' Eyes Only" where the Producing Party determines in good faith that the material contains extremely sensitive business, strategic, or personal information, the disclosure of which to opposing parties or their officers, directors, employees, or agents could cause significant competitive harm, strategic disadvantage, or invasion of personal privacy. The category of HC-AEO material includes, but is not limited to: BRB's internal credit risk rating analyses; Special Assets Group disposition strategy memoranda; credit committee deliberations; BRB's loan-loss reserve classifications and related workpapers; internal litigation risk assessments prepared by or at the direction of BRB personnel; personal tax returns and personal financial statements of Marcus J. Kappel and Elaine D. Kappel; and Triton Harbor's non-public financial projections, internal management reports, and related strategic planning documents.

1.6 "Qualified Person" shall mean a person authorized to receive discovery Material designated as Confidential or HC-AEO, as specified in Sections 4 and 5 of this Order, respectively. No person shall be deemed a Qualified Person unless and until such person satisfies all applicable requirements set forth herein, including, where applicable, the execution of the Acknowledgment and Agreement form attached hereto as Exhibit A.

1.7 "Counsel of Record" shall mean:

(a) For BRB: Calderwood & Harkness LLP, including attorneys Linda Osei, Esq., Priya Anand, Esq., Carlos Espinoza, Esq., and Hannah Brinkley, Esq., and such other attorneys, paralegals, litigation support personnel, and staff as are working on this matter under their supervision; and

(b) For Triton Harbor and the Kappels: Kestrel Voss & Huang LLP, including attorneys Theodore Huang, Esq., and Natasha Orlov, Esq., and such other attorneys, paralegals, litigation support personnel, and staff as are working on this matter under their supervision.

1.8 "Expert" or "Consultant" shall mean any expert witness, consulting expert, or litigation consultant retained by a party or a party's counsel in connection with this action, whether for purposes of rendering testimony at trial or for consultation and advice in connection with the litigation. The term includes, without limitation, Dr. Gerald Stokes of Wentworth Risk Advisors LLC (retained by BRB) and any expert or consultant retained by Triton Harbor or the Kappels.

SECTION 2: SCOPE OF THE PROTECTIVE ORDER

2.1 This Order governs all discovery Material produced, disclosed, or otherwise made available in this action by any party or non-party, whether produced voluntarily or pursuant to compulsory process, including but not limited to documents produced in response to document demands served under CPLR 3120, responses to interrogatories served under CPLR 3130, responses to requests for admission served under CPLR 3123, deposition testimony taken under CPLR 3107 and 3108, and documents and testimony produced by non-parties in response to subpoenas served under CPLR 3101(a)(4) and 2303.

2.2 This Order applies to discovery Material in all forms, media, and formats, including paper documents, ESI (whether produced in native format, TIFF image format, or other agreed-upon formats), deposition transcripts, deposition exhibits, videotaped deposition recordings, interrogatory answers, responses to requests for admission, and any summaries, analyses, compilations, charts, demonstratives, or other derivative materials created from or incorporating designated discovery Material.

2.3 This Order does not confer blanket protection on any party's discovery productions. Each designation of Confidential or HC-AEO must be made in good faith and on a document-by-document or category-by-category basis, consistent with the standards set forth in Sections 1.4 and 1.5. The entry of this Order shall not be construed as an acknowledgment by any party that any particular document or category of documents warrants confidential treatment, nor shall it relieve the Producing Party of its burden to justify any designation that is challenged pursuant to Section 7.

2.4 Nothing in this Order shall prevent any party from using, disclosing, or disseminating its own documents, information, or data for any purpose whatsoever, regardless of any confidentiality designation that may have been applied to such material by the opposing party. A party's own documents remain its property and are not restricted by this Order.

SECTION 3: DESIGNATION OF CONFIDENTIAL AND HC-AEO MATERIALS

3.1 Method of Designation — Documents

Produced documents shall be designated by stamping or electronically marking each page of the designated document with the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY," as applicable. Such legend shall be placed adjacent to the Bates production number on each page. For ESI produced in TIFF format with extracted text and metadata, in accordance with the parties' agreed-upon ESI production protocol, designation shall be made both by coding the appropriate confidentiality field in the accompanying load file and by stamping each TIFF image with the applicable confidentiality legend. Where documents are produced in native format by agreement of the parties, designation shall be made by including the confidentiality designation in the accompanying transmittal correspondence or load file, and the Receiving Party shall treat all such documents in accordance with the designated level of protection.

3.2 Method of Designation — Depositions

At any deposition taken in this action, counsel for any party or non-party witness may designate testimony as Confidential or HC-AEO by stating the designation on the record at the time the testimony is given. Such designation may be made with respect to specific questions and answers or with respect to identified portions of the testimony. The designation shall be noted by the court reporter and reflected in the transcript.

Where a designation is not made at the time of the deposition, any party may designate deposition testimony as Confidential or HC-AEO within fourteen (14) calendar days after receipt of the final certified transcript by providing written notice to all counsel of record. Such notice shall identify the specific pages and line numbers to be designated and the level of protection (Confidential or HC-AEO) applicable to each designated portion.

Pending expiration of the fourteen (14)-day designation period following receipt of the final transcript, the entire deposition transcript and all exhibits thereto shall be treated as HC-AEO material, and access shall be limited accordingly. Upon expiration of the designation period, only those portions actually designated shall retain their protected status, and all undesignated portions shall be treated as unprotected.

3.3 Method of Designation — Interrogatory Responses and Other Written discovery

Interrogatory responses, responses to requests for admission, and other written discovery responses may be designated by including the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" prominently on the face of each page of the response that contains protected information. Where only a portion of a written discovery response contains information warranting protection, the Producing Party shall use reasonable efforts to designate only the specific responses or portions thereof that warrant protection, rather than designating the entire set of responses.

3.4 Timing. Designations shall be made at the time of production or disclosure of the discovery Material. A Producing Party may supplement or amend its designations at any time thereafter by providing written notice to the Receiving Party identifying the specific documents or materials affected and the revised designation. Upon receipt of such notice, the Receiving Party shall promptly apply the revised designation to its copies of the affected materials and shall treat the materials in accordance with the revised designation from that point forward.

3.5 Good Faith Requirement

All designations under this Order must be made in good faith and in the reasonable belief that the material in question contains information warranting the designated level of protection under the standards set forth in Sections 1.4 and 1.5 of this Order. Mass, indiscriminate, or blanket designation of entire productions, or of broad categories of documents without individualized review, is not permitted and may be the subject of a motion to the Court pursuant to CPLR 3103(a). The parties are encouraged to exercise restraint and to designate only those materials that genuinely warrant protection at the applicable level, reserving the HC-AEO designation for materials of the highest sensitivity.

SECTION 4: PERMITTED ACCESS — "CONFIDENTIAL" MATERIALS

4.1 discovery Material designated "CONFIDENTIAL" pursuant to this Order may be disclosed only to the following Qualified Persons:

(a) Counsel of Record, as defined in Section 1.7, and their attorneys, paralegals, litigation support staff, secretarial and administrative personnel, and other employees who are working on this matter under the supervision of the named attorneys;

(b) The Court, including the Hon. Althea Marchetti, J.S.C., chambers staff, court clerks, court personnel, and any Special Master or Referee appointed in this action;

(c) Officers, directors, and in-house legal personnel of the Producing Party — that is, the party that produced the designated material may share its own Confidential material with its own officers, directors, employees, and in-house counsel without restriction under this Order;

(d) Up to three (3) designated representatives of the Receiving Party (i.e., officers or employees of the opposing party), who are identified in writing to the Producing Party's counsel at least five (5) business days before the intended disclosure and who have signed the Acknowledgment and Agreement form attached hereto as Exhibit A prior to receiving access to any Confidential material;

(e) For BRB, the following individuals are pre-approved as designated representatives authorized to access Confidential material produced by Triton Harbor and/or the Kappels: Margaret Linden, Senior Vice President and General Counsel of BRB; Thomas Hargreaves, Vice President and Associate General Counsel of BRB; and one additional designated representative to be identified in writing to Triton Harbor's counsel in accordance with subsection (d) above;

(f) For Triton Harbor and the Kappels, the following individuals are pre-approved as designated representatives authorized to access Confidential material produced by BRB: Marcus J. Kappel, Chief Executive Officer of Triton Harbor; Elaine D. Kappel, Chief Financial Officer of Triton Harbor; and one additional designated representative to be identified in writing to BRB's counsel in accordance with subsection (d) above;

(g) Experts and consultants retained by any party or party's counsel for purposes of this litigation, who have signed the Acknowledgment and Agreement form attached as Exhibit A prior to receiving access to any Confidential material, including Dr. Gerald Stokes of Wentworth Risk Advisors LLC;

(h) Court reporters, videographers, and interpreters engaged for depositions or other proceedings in this action, who have signed the Acknowledgment and Agreement form attached as Exhibit A prior to receiving access to any Confidential material;

(i) Any witness to whom Confidential material is shown during a deposition or at trial, to the extent reasonably necessary for the examination of such witness, provided that the witness is informed on the record that the material is designated Confidential and is subject to the terms of this Order;

(j) Any document reproduction service, litigation support vendor, e-discovery vendor, copying service, or similar third-party service provider engaged by Counsel of Record for purposes of this action, to the extent that such access is reasonably necessary for the performance of the vendor's services.

SECTION 5: PERMITTED ACCESS — "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" MATERIALS

5.1 discovery Material designated "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" pursuant to this Order may be disclosed only to the following Qualified Persons:

(b) The Court, including the Hon. Althea Marchetti, J.S.C., chambers staff, court clerks, court personnel, and any Special Master or Referee appointed in this action;

(c) Officers, directors, and in-house legal personnel of the Producing Party — that is, the party that produced the designated HC-AEO material may share its own HC-AEO material with its own officers, directors, employees, and in-house counsel without restriction under this Order;

(d) Experts and consultants retained by any party or party's counsel for purposes of this litigation, who have signed the Acknowledgment and Agreement form attached as Exhibit A prior to receiving access to any HC-AEO material, including Dr. Gerald Stokes of Wentworth Risk Advisors LLC;

(e) Court reporters, videographers, and interpreters engaged for depositions or other proceedings in this action, who have signed the Acknowledgment and Agreement form attached as Exhibit A prior to receiving access to any HC-AEO material;

(f) Document reproduction services, litigation support vendors, e-discovery vendors, copying services, and similar third-party service providers engaged by Counsel of Record for purposes of this action, to the extent that such access is reasonably necessary for the performance of the vendor's services.

5.2 HC-AEO material shall NOT be disclosed to any officer, director, employee, or agent of the opposing party except as specifically provided in Section 6 of this Order. By way of illustration and without limitation:

(a) BRB's HC-AEO material shall not be disclosed to Marcus J. Kappel, Elaine D. Kappel, or any other officer, director, employee, manager, member, or agent of Triton Harbor Industries, LLC; and

(b) Triton Harbor's and the Kappels' HC-AEO material shall not be disclosed to Derek Whitmore, Joanna Reeves, Philip Aaronson, Margaret Linden, Thomas Hargreaves, or any other officer, director, employee, or agent of Belmont Ridge Bank NA.

The foregoing restriction is a material and essential term of this Order.

5.3 The parties agree that the following categories of material shall presumptively be designated HC-AEO, subject to the right of any party to challenge such designation pursuant to Section 7:

(a) BRB's internal credit risk rating analyses for the Triton Harbor credits, including without limitation the March 8, 2023 downgrade memorandum in which BRB assigned a Risk Rating 7 — Substandard classification to the Triton Harbor loan facilities;

(b) BRB's Special Assets Group internal strategy memoranda and disposition planning documents concerning the Triton Harbor credits, including all internal correspondence and presentations relating to workout, restructuring, foreclosure, or liquidation alternatives;

(c) BRB's credit committee minutes and deliberations regarding the Triton Harbor credits, including all written materials submitted to or generated by the credit committee in connection with any action taken on the Triton Harbor loan facilities;

(d) BRB's loan-loss reserve classifications and related workpapers, including any workpapers, analyses, or correspondence prepared by or exchanged with Tavrenis & Hatch CPAs LLP in connection with BRB's allowance for loan and lease losses;

(e) Personal tax returns (federal, state, and local) and personal financial statements of Marcus J. Kappel and Elaine D. Kappel, including all schedules, attachments, and supporting documentation;

(f) Triton Harbor's non-public financial projections, internal management reports, budgets, and cash flow analyses not previously disclosed to BRB in the ordinary course of the lending relationship;

(g) Personal financial details relating to the Kappel residence located at 14 Birchmont Lane, Westport, Connecticut 06880, including mortgage documentation, title records, and any appraisals or valuations thereof;

(h) Communications with, reports by, or analyses prepared by Mercer Tidwell & Associates LLC concerning Triton Harbor's restructuring analysis, financial condition, and strategic alternatives, to the extent such materials are not already subject to a separate claim of privilege or work product protection.

SECTION 6: PROCEDURE FOR DISCLOSURE OF HC-AEO MATERIAL TO A PARTY REPRESENTATIVE FOR DEPOSITION OR TRIAL PREPARATION

6.1 If a Receiving Party believes in good faith that it is necessary to disclose specific HC-AEO material to a party representative for purposes of deposition preparation or preparation for trial testimony, the Receiving Party shall provide written notice to the Producing Party at least ten (10) business days before the intended disclosure. Such notice shall identify the specific documents by Bates number, describe the HC-AEO material at issue with reasonable particularity, identify the party representative to whom disclosure is proposed (e.g., Marcus J. Kappel, Elaine D. Kappel, Derek Whitmore, Philip Aaronson, or Joanna Reeves), and set forth the reasons why such disclosure is necessary for deposition preparation or trial preparation.

6.2 The Producing Party shall have five (5) business days from receipt of such notice to object in writing to the proposed disclosure. Any objection shall state with specificity the grounds for the objection and shall identify any alternative measures proposed by the Producing Party to address the Receiving Party's stated need for the disclosure (such as providing a redacted version of the document or permitting disclosure of a summary rather than the underlying document).

6.3 If the parties are unable to resolve the dispute through meet and confer, the Receiving Party may apply to the Court by letter motion or order to show cause for an order permitting the proposed disclosure. The HC-AEO material at issue shall remain subject to the HC-AEO restrictions pending resolution of the dispute by the Court. The Court may impose such conditions on the disclosure as it deems appropriate to protect the legitimate confidentiality interests of the Producing Party while ensuring that the Receiving Party's representative is adequately prepared for deposition or trial testimony.

6.4 The parties acknowledge that this provision is particularly relevant given the deposition schedule currently in effect in this action. As of the date of this Order, the following depositions are scheduled: Derek Whitmore (Senior Vice President, Special Assets Group, BRB) on February 18, 2025; Joanna Reeves (Vice President, Commercial Lending, BRB) on February 25, 2025; Philip Aaronson (Managing Director, Credit Review, BRB) on March 4, 2025; Marcus J. Kappel (CEO, Triton Harbor) on March 11, 2025; and Elaine D. Kappel (CFO, Triton Harbor) on March 18, 2025. The parties shall use reasonable efforts to raise and resolve any disputes under this Section in advance of the applicable deposition date so as to avoid unnecessary delay or adjournment.

SECTION 7: CHALLENGING A DESIGNATION

7.1 Any Receiving Party may challenge the designation of any discovery Material as Confidential or HC-AEO at any time during the pendency of this action. A party's decision not to challenge a designation at any particular time shall not be deemed a waiver of the right to challenge such designation at a later time.

7.2 The challenging party shall first notify the Producing Party in writing (by letter or electronic mail to counsel of record) of the specific documents or categories of documents challenged and the grounds for the challenge. The notice shall identify the challenged documents by Bates number or other reasonable means of identification and shall state whether the challenging party contends that the material should be entirely undesignated or should be redesignated at a lower level of protection.

7.3 The parties shall meet and confer in good faith within ten (10) business days of the date of the challenge notice in an effort to resolve the dispute without court intervention. The meet and confer may be conducted in person, by telephone, or by videoconference.

7.4 If the dispute is not resolved through the meet-and-confer process, the challenging party may move the Court for relief pursuant to CPLR 3103. On any such motion, the burden of justifying the challenged designation shall rest on the Producing Party. The Producing Party must demonstrate, by a preponderance of the evidence, that the designated material contains information warranting the level of protection originally designated under the standards set forth in Sections 1.4 and 1.5 of this Order.

7.5 Pending resolution of any challenge, whether by agreement of the parties or by order of the Court, the challenged material shall continue to be treated at the level originally designated by the Producing Party.

SECTION 8: USE OF CONFIDENTIAL AND HC-AEO MATERIALS

8.1 All discovery Material designated as Confidential or HC-AEO pursuant to this Order shall be used solely for purposes of this litigation, bearing Index No. 654871/2024 in the Supreme Court of the State of New York, County of New York, Commercial Division. Such material shall not be used for any business, competitive, commercial, regulatory, personal, or other purpose unrelated to this litigation, including but not limited to any use in connection with business decisions, competing loan transactions, regulatory filings, or communications with governmental agencies or third parties. Notwithstanding the foregoing, nothing in this Section shall prohibit any party from using its own documents for any purpose, as provided in Section 2.4.

8.2 No Qualified Person who receives Confidential or HC-AEO material pursuant to this Order shall disclose such material, or the contents thereof, to any person who is not authorized to receive such material under the applicable provisions of this Order.

8.3 Counsel of Record shall maintain all Confidential and HC-AEO materials in a secure manner, whether in physical or electronic form, and shall take reasonable steps to prevent unauthorized access, disclosure, or dissemination. Such steps shall include, at a minimum, storing physical copies in locked offices or file cabinets, restricting electronic access through password protection or other security measures, and ensuring that Confidential and HC-AEO materials are not left unattended in areas accessible to unauthorized persons.

SECTION 9: FILING UNDER SEAL

9.1 If any party seeks to file with the Court any document, exhibit, brief, memorandum, or other submission that contains or refers to Confidential or HC-AEO material, the filing party shall comply with the applicable Commercial Division rules and Part 216 of the Uniform Rules for Trial Courts (22 NYCRR § 216.1), which governs the sealing of court records. The filing party shall not file Confidential or HC-AEO material in the public record without first complying with this Section.

9.2 Before making any such filing, the parties shall meet and confer in good faith regarding the necessity and scope of sealing. If the parties agree that sealing is appropriate, they shall submit a joint application to seal in accordance with Part 216, together with a proposed sealing order. If the parties do not agree, the filing party shall submit the material at issue provisionally under seal, together with a letter or motion explaining the basis for sealing, pending a ruling by the Court. The opposing party shall have the opportunity to be heard on any such application.

9.3 No designation of Confidential or HC-AEO under this Order shall, standing alone, constitute a finding of good cause for sealing under Part 216 or otherwise. The party seeking to seal any filing bears the burden of demonstrating good cause for sealing in accordance with the standards established by applicable law, including the presumption of public access to court records. This Order is intended to govern the handling of discovery Material among the parties and their representatives and shall not be construed as a predetermination of any sealing question.

SECTION 10: INADVERTENT PRODUCTION AND CLAWBACK

10.1 The production of any document or information in this action shall not constitute a waiver of any privilege, immunity, or protection, including the attorney-client privilege and the work product doctrine, if the production was inadvertent. This provision applies regardless of the number of documents inadvertently produced, the length of time between the production and the assertion of privilege, or the measures taken by the Producing Party to prevent inadvertent production.

10.2 If a Producing Party discovers that it has inadvertently produced a document or information that is protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or protection, the Producing Party shall promptly notify the Receiving Party in writing. Such notice shall identify the document by Bates number (or, if the document was not Bates-stamped, by such other means of identification as are reasonably practicable) and shall state the basis for the privilege or protection claim with sufficient specificity to enable the Receiving Party to assess the validity of the claim.

10.3 Upon receipt of a notice of inadvertent production under Section 10.2, the Receiving Party shall, within five (5) business days of receipt:

(a) Return to the Producing Party, sequester, or destroy all copies of the identified document or information in the Receiving Party's possession, custody, or control, including all copies in the possession of any Qualified Person to whom the document was disclosed;

(b) Refrain from using the document or its contents for any purpose pending resolution of the privilege claim, including any use in connection with depositions, motion practice, or trial; and

(c) Confirm compliance with subsections (a) and (b) in writing to the Producing Party, identifying the steps taken to return, sequester, or destroy all copies.

10.4 If the Receiving Party disputes the assertion of privilege or protection, the parties shall meet and confer in good faith in an effort to resolve the dispute. If the parties are unable to reach agreement, either party may submit the matter to the Court for in camera review and determination. Pending the Court's determination, the Receiving Party shall continue to comply with the requirements of Section 10.3.

10.5 This provision is intended to be consistent with CPLR 3103 and the common-law principles governing inadvertent disclosure of privileged materials. It is intended to supplement, not limit, any applicable common-law or statutory protections against inadvertent waiver of privilege, including any protections available under CPLR 4503 and the principles articulated by New York courts regarding the inadvertent disclosure of privileged communications.

10.6 Without limiting the generality of the foregoing, this clawback protocol shall govern situations involving the inadvertent production of privileged communications, including any internal communications between BRB personnel and BRB's General Counsel, Margaret Linden, or prior counsel, Blakemore & Stern LLP, which may be interspersed among the approximately 34,000 documents under review for production.

SECTION 11: NON-PARTY DISCOVERY MATERIALS

11.1 Any party that issues a subpoena or other form of compulsory process to a non-party for the production of documents or testimony in this action shall provide a copy of this Order to the non-party together with the subpoena or other process, and shall advise the non-party of its right to designate its productions as Confidential or HC-AEO pursuant to the procedures set forth herein.

11.2 Non-parties may designate their productions as Confidential or HC-AEO in accordance with the procedures set forth in Section 3 of this Order. Non-party productions that are designated as Confidential or HC-AEO shall be subject to the same restrictions on access, use, and disclosure as party productions bearing the same designation.

11.3 The parties anticipate that non-party discovery may be sought from, among others, the following entities and individuals:

(a) Tavrenis & Hatch CPAs LLP, BRB's external auditors, located at 1301 Avenue of the Americas, 42nd Floor, New York, New York 10019;

(b) Ridgeline Appraisal Group, Inc., the collateral appraiser engaged in connection with the Triton Harbor credits, located at 312 Elm Street, Stamford, Connecticut 06902;

(c) Mercer Tidwell & Associates LLC, Triton Harbor's restructuring advisor, located at 245 Park Avenue, 28th Floor, New York, New York 10167;

(d) Harborview Title & Escrow Co., the title insurer for certain of the collateral properties, located at 233 Broadway, Suite 1600, New York, New York 10279; and

(e) Pinnacle Omnivrel Insurance Co., the directors' and officers' liability insurer for Triton Harbor, located at 100 Constitution Plaza, Hartford, Connecticut 06103.

The foregoing list is illustrative and shall not limit the applicability of this Order to discovery obtained from other non-parties.

SECTION 12: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

12.1 Before any Qualified Person (other than Counsel of Record and the Court) is permitted to access any discovery Material designated as Confidential or HC-AEO, such person must execute the Acknowledgment and Agreement to Be Bound by Stipulated Protective Order in the form attached hereto as Exhibit A. A copy of the executed Acknowledgment shall be provided to the counsel offering access prior to any disclosure of designated material to the executing individual.

12.2 Executed copies of the Acknowledgment and Agreement form shall be retained by the counsel providing access and shall be maintained throughout the pendency of this action. Executed Acknowledgment forms shall be available for inspection by the Producing Party or the Court upon request.

12.3 Counsel of Record, as defined in Section 1.7, are deemed bound by the terms of this Order by virtue of their participation in and execution of the underlying stipulation, without the need to execute a separate Acknowledgment and Agreement form.

SECTION 13: DURATION AND SURVIVAL

13.1 This Order shall remain in full force and effect during the pendency of this action and for a period of two (2) years following the final disposition of all claims, counterclaims, crossclaims, and third-party claims in this action, including the exhaustion or expiration of all rights of appeal. For purposes of this Section, "final disposition" shall mean the entry of a final, non-appealable judgment or order disposing of all claims and counterclaims, or the execution of a settlement agreement resolving all claims and counterclaims, whichever occurs later.

13.2 Within sixty (60) days of the conclusion of this action (including the resolution of any appeals), each Receiving Party shall, at the election of the Producing Party, either return to the Producing Party or destroy all Confidential and HC-AEO materials in its possession, custody, or control, including all copies, excerpts, summaries, and compilations thereof. The Receiving Party shall certify in writing to the Producing Party that it has complied with this obligation, specifying whether the materials were returned or destroyed. Notwithstanding the foregoing, Counsel of Record may retain one (1) archival copy of all Confidential and HC-AEO materials in a secure location for the sole purpose of maintaining a record of the litigation and complying with applicable professional responsibility and document retention obligations. Any such archival copies shall remain subject to the terms of this Order.

SECTION 14: REMEDIES FOR BREACH

14.1 Any breach of this Order may be enforced by any appropriate remedy available to the Court, including but not limited to contempt of court, injunctive relief (including temporary restraining orders and preliminary and permanent injunctions), sanctions (including monetary sanctions and adverse inference instructions), and an award of reasonable attorneys' fees and costs incurred in connection with the enforcement of this Order.

14.2 Nothing in this Order limits, restricts, or affects any other legal remedies available to any party or non-party for the unauthorized disclosure of confidential information, including claims for breach of contract, tortious interference, misappropriation, or any other cause of action that may arise under applicable law.

SECTION 15: MODIFICATION

15.1 This Order may be modified by the Court at any time upon application of any party for good cause shown, upon such notice to the opposing parties as the Court may direct.

15.2 The parties may modify this Order by written stipulation signed by all counsel of record, provided that any such modification shall be submitted to the Court for approval and shall not take effect until so-ordered by the Court.

SECTION 16: RESERVATION OF RIGHTS

16.1 Nothing in this Order shall be construed as a waiver of any party's right to object to the production or admissibility of any discovery Material on any ground other than confidentiality, including but not limited to objections based on relevance, privilege, burdensomeness, proportionality, or any other ground recognized by the CPLR or applicable law.

16.2 Nothing in this Order shall be construed as an admission by any party that any particular document, category of documents, or information is or is not confidential, proprietary, or trade secret in nature. The designation of material under this Order is made solely for purposes of this litigation and shall have no bearing on the characterization of such material in any other proceeding or context.

16.3 This Order does not affect, modify, or limit any party's obligations with respect to the identification, preservation, and collection of documents and electronically stored information, as set forth in applicable law, any litigation hold notices issued by the parties, or any prior orders of this Court.

SECTION 17: GOVERNING LAW

17.1 This Order shall be governed by and construed in accordance with the laws of the State of New York, including the Civil Practice Law and Rules, the applicable rules of the Commercial Division of the Supreme Court, and the Uniform Rules for Trial Courts, as the same may be amended from time to time.

STIPULATION AND CONSENT OF COUNSEL

The undersigned counsel of record for the parties hereby stipulate and consent to the entry of this Stipulated Protective Order Governing Confidential discovery Materials, and respectfully request that the Court so-order the same.

For Plaintiff/Counterclaim Defendant BELMONT RIDGE BANK NA:

CALDERWOOD & HARKNESS LLP

By: ________

Linda Osei, Esq. 600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 555-4100 Facsimile: (212) 555-4101 losei@calderwoodharkness.com

Attorneys for Plaintiff/Counterclaim Defendant Belmont Ridge Bank NA

Date: December 20, 2024

For Defendants/Counterclaim Plaintiffs TRITON HARBOR INDUSTRIES, LLC, MARCUS J. KAPPEL, and ELAINE D. KAPPEL:

KESTREL VOSS & HUANG LLP

By: ________

Theodore Huang, Esq. 780 Third Avenue, 24th Floor New York, New York 10017 Telephone: (212) 555-7800 Facsimile: (212) 555-7801 thuang@kestrelvoss.com

Attorneys for Defendants/Counterclaim Plaintiffs Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel

Date: December 20, 2024

SO ORDERED

SO ORDERED this 20th day of December, 2024.

________________________________________

Hon. Althea Marchetti Justice, Supreme Court of the State of New York New York County, Commercial Division

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER

Case: Belmont Ridge Bank NA v. Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel, Index No. 654871/2024, Supreme Court of the State of New York, County of New York, Commercial Division.

Name of Individual: __________

Title/Position: __________

Employer/Affiliation: __________

Business Address: __________

________________________________________

I, the undersigned, hereby certify, acknowledge, and agree as follows:

1. I have read in its entirety the Stipulated Protective Order Governing Confidential discovery Materials dated December 20, 2024 (the "Protective Order"), entered by the Hon. Althea Marchetti, J.S.C., in the above-captioned action.

2. I understand the terms and provisions of the Protective Order, including the restrictions on the use, disclosure, and dissemination of materials designated as "CONFIDENTIAL" and "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY."

3. I agree to be bound by the Protective Order in full and to comply with all of its terms, conditions, and restrictions.

4. I agree to hold all Confidential and Highly Confidential — Attorneys' Eyes Only materials in strict confidence and not to disclose such materials, or any information contained therein, to any person who is not authorized to receive such materials under the Protective Order.

5. I agree to use materials designated as Confidential or Highly Confidential — Attorneys' Eyes Only solely for purposes of the above-captioned litigation (Index No. 654871/2024) and for no other business, commercial, competitive, personal, regulatory, or other purpose.

6. I understand that any violation of the Protective Order may subject me to sanctions, contempt of court, and other remedies as the Court may deem appropriate.

7. I hereby submit to the jurisdiction of the Supreme Court of the State of New York, County of New York, Commercial Division, for purposes of the enforcement of the Protective Order.

8. Upon the conclusion of this litigation (including any appeals), or upon the request of the counsel who provided me with access to designated materials, I agree to return or destroy all Confidential and Highly Confidential — Attorneys' Eyes Only materials in my possession, custody, or control, and to certify such return or destruction in writing.

________________________________________

Signature

________________________________________

Printed Name

________________________________________

Date

Witness (optional):

________________________________________

Signature of Witness

________________________________________

Printed Name of Witness

________________________________________

Date

This Acknowledgment and Agreement form shall be retained by the counsel providing access and shall be available for inspection by the Producing Party or the Court upon request, in accordance with Section 12 of the Stipulated Protective Order.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK COMMERCIAL DIVISION
BELMONT RIDGE BANK NA,
Plaintiff/Counterclaim Defendant,
— against —
TRITON HARBOR INDUSTRIES, LLC, MARCUS J. KAPPEL, and ELAINE D. KAPPEL,
Defendants/Counterclaim Plaintiffs.
Index No. 654871/2024
Assigned Justice: Hon. Althea Marchetti
STIPULATED PROTECTIVE ORDER GOVERNING CONFIDENTIAL DISCOVERY MATERIALS
Dated: December 20, 2024
PREAMBLE AND RECITALS
WHEREAS, this action was commenced on August 12, 2024, by Plaintiff/Counterclaim Defendant Belmont Ridge Bank NA ("BRB" or "Plaintiff") by the filing of a Summons and Verified Complaint in the Supreme Court of the State of New York, County of New York, Commercial Division, bearing Index No. 654871/2024;
WHEREAS, Defendants/Counterclaim Plaintiffs Triton Harbor Industries, LLC ("Triton Harbor"), Marcus J. Kappel, and Elaine D. Kappel (collectively, "Defendants" or "Counterclaim Plaintiffs") filed their Verified Answer with Affirmative Defenses and Counterclaims on October 18, 2024;
WHEREAS, BRB is represented in this action by Calderwood & Harkness LLP, 600 Lexington Avenue, 30th Floor, New York, New York 10022, through the attorneys Linda Osei, Esq., Priya Anand, Esq., Carlos Espinoza, Esq., and Hannah Brinkley, Esq.;
WHEREAS, Triton Harbor and Marcus J. Kappel and Elaine D. Kappel (collectively, the "Kappels") are represented in this action by Kestrel Voss & Huang LLP, 780 Third Avenue, 24th Floor, New York, New York 10017, through the attorneys Theodore Huang, Esq., and Natasha Orlov, Esq.;
WHEREAS, in the course of discovery, the parties anticipate producing documents and information that contain confidential, proprietary, and commercially sensitive information, including but not limited to BRB's internal credit files, Special Assets Group memoranda, credit committee minutes, internal strategy documents, loan-loss reserve classifications, collateral appraisals, and financial information of Triton Harbor Industries, LLC and its principals;
WHEREAS, the approximate universe of documents under review for production by BRB comprises approximately 34,000 documents, including electronically stored information, and Triton Harbor will be producing its own financial records, communications with Mercer Tidwell & Associates LLC (its restructuring advisor), and related documents;
WHEREAS, the parties, by and through their respective counsel, have conferred in good faith and have agreed to the terms of this Stipulated Protective Order (the "Order") to facilitate the free exchange of discovery materials while protecting the legitimate confidentiality interests of both parties and relevant non-parties;
WHEREAS, this Order is entered pursuant to CPLR § 3103(a) and the applicable Rules of the Commercial Division of the Supreme Court of the State of New York;
NOW, THEREFORE, the Court, having reviewed the parties' stipulation and the representations of counsel, and finding good cause to enter this Order for the protection of confidential and proprietary information, hereby SO ORDERS as follows:
SECTION 1: DEFINITIONS
As used in this Order, the following terms shall have the meanings set forth below:
1.1 "Producing Party" shall mean any party or non-party that produces, provides, or discloses discovery Material in this action, whether voluntarily or pursuant to compulsory process, including but not limited to responses to document requests, interrogatories, requests for admission, deposition testimony, and subpoenas duces tecum.
1.2 "Receiving Party" shall mean any party or person who receives discovery Material designated as Confidential or Highly Confidential — Attorneys' Eyes Only pursuant to the terms of this Order.
1.3 "Discovery Material" shall mean all documents, electronically stored information ("ESI"), interrogatory responses, deposition testimony, responses to requests for admission, tangible items, and any other material produced, disclosed, or provided in discovery in this action, regardless of the medium or format in which such material exists. The term "Discovery Material" includes all copies, excerpts, summaries, abstracts, compilations, indices, and descriptions thereof, whether in original or reproduced form, and whether created before or during the course of this litigation.
1.4 "Confidential" shall mean the first tier of protection under this Order. Discovery Material may be designated as "Confidential" where the Producing Party determines in good faith that the material contains confidential business, financial, commercial, or proprietary information, the disclosure of which to persons outside the categories of Qualified Persons specified in Section 4 could cause competitive harm, economic harm, or other prejudice to the Producing Party or the person or entity to whom the information pertains. The category of "Confidential" material includes, but is not limited to, borrower financial statements, loan agreements and related credit documentation, credit memoranda, internal correspondence regarding the lending relationship between BRB and Triton Harbor, collateral appraisals and valuation reports, and personal financial information of individuals.
1.5 "Highly Confidential — Attorneys' Eyes Only" ("HC-AEO") shall mean the second and highest tier of protection under this Order. Discovery Material may be designated as "Highly Confidential — Attorneys' Eyes Only" where the Producing Party determines in good faith that the material contains extremely sensitive business, strategic, or personal information, the disclosure of which to opposing parties or their officers, directors, employees, or agents could cause significant competitive harm, strategic disadvantage, or invasion of personal privacy. The category of HC-AEO material includes, but is not limited to: BRB's internal credit risk rating analyses; Special Assets Group disposition strategy memoranda; credit committee deliberations; BRB's loan-loss reserve classifications and related workpapers; internal litigation risk assessments prepared by or at the direction of BRB personnel; personal tax returns and personal financial statements of Marcus J. Kappel and Elaine D. Kappel; and Triton Harbor's non-public financial projections, internal management reports, and related strategic planning documents.
1.6 "Qualified Person" shall mean a person authorized to receive discovery Material designated as Confidential or HC-AEO, as specified in Sections 4 and 5 of this Order, respectively. No person shall be deemed a Qualified Person unless and until such person satisfies all applicable requirements set forth herein, including, where applicable, the execution of the Acknowledgment and Agreement form attached hereto as Exhibit A.
1.7 "Counsel of Record" shall mean:
(a) For BRB: Calderwood & Harkness LLP, including attorneys Linda Osei, Esq., Priya Anand, Esq., Carlos Espinoza, Esq., and Hannah Brinkley, Esq., and such other attorneys, paralegals, litigation support personnel, and staff as are working on this matter under their supervision; and
(b) For Triton Harbor and the Kappels: Kestrel Voss & Huang LLP, including attorneys Theodore Huang, Esq., and Natasha Orlov, Esq., and such other attorneys, paralegals, litigation support personnel, and staff as are working on this matter under their supervision.
1.8 "Expert" or "Consultant" shall mean any expert witness, consulting expert, or litigation consultant retained by a party or a party's counsel in connection with this action, whether for purposes of rendering testimony at trial or for consultation and advice in connection with the litigation. The term includes, without limitation, Dr. Gerald Stokes of Wentworth Risk Advisors LLC (retained by BRB) and any expert or consultant retained by Triton Harbor or the Kappels.
SECTION 2: SCOPE OF THE PROTECTIVE ORDER
2.1 This Order governs all discovery Material produced, disclosed, or otherwise made available in this action by any party or non-party, whether produced voluntarily or pursuant to compulsory process, including but not limited to documents produced in response to document demands served under CPLR 3120, responses to interrogatories served under CPLR 3130, responses to requests for admission served under CPLR 3123, deposition testimony taken under CPLR 3107 and 3108, and documents and testimony produced by non-parties in response to subpoenas served under CPLR 3101(a)(4) and 2303.
2.2 This Order applies to discovery Material in all forms, media, and formats, including paper documents, ESI (whether produced in native format, TIFF image format, or other agreed-upon formats), deposition transcripts, deposition exhibits, videotaped deposition recordings, interrogatory answers, responses to requests for admission, and any summaries, analyses, compilations, charts, demonstratives, or other derivative materials created from or incorporating designated discovery Material.
2.3 This Order does not confer blanket protection on any party's discovery productions. Each designation of Confidential or HC-AEO must be made in good faith and on a document-by-document or category-by-category basis, consistent with the standards set forth in Sections 1.4 and 1.5. The entry of this Order shall not be construed as an acknowledgment by any party that any particular document or category of documents warrants confidential treatment, nor shall it relieve the Producing Party of its burden to justify any designation that is challenged pursuant to Section 7.
2.4 Nothing in this Order shall prevent any party from using, disclosing, or disseminating its own documents, information, or data for any purpose whatsoever, regardless of any confidentiality designation that may have been applied to such material by the opposing party. A party's own documents remain its property and are not restricted by this Order.
SECTION 3: DESIGNATION OF CONFIDENTIAL AND HC-AEO MATERIALS
3.1 Method of Designation — Documents
Produced documents shall be designated by stamping or electronically marking each page of the designated document with the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY," as applicable. Such legend shall be placed adjacent to the Bates production number on each page. For ESI produced in TIFF format with extracted text and metadata, in accordance with the parties' agreed-upon ESI production protocol, designation shall be made both by coding the appropriate confidentiality field in the accompanying load file and by stamping each TIFF image with the applicable confidentiality legend. Where documents are produced in native format by agreement of the parties, designation shall be made by including the confidentiality designation in the accompanying transmittal correspondence or load file, and the Receiving Party shall treat all such documents in accordance with the designated level of protection.
3.2 Method of Designation — Depositions
At any deposition taken in this action, counsel for any party or non-party witness may designate testimony as Confidential or HC-AEO by stating the designation on the record at the time the testimony is given. Such designation may be made with respect to specific questions and answers or with respect to identified portions of the testimony. The designation shall be noted by the court reporter and reflected in the transcript.
Where a designation is not made at the time of the deposition, any party may designate deposition testimony as Confidential or HC-AEO within fourteen (14) calendar days after receipt of the final certified transcript by providing written notice to all counsel of record. Such notice shall identify the specific pages and line numbers to be designated and the level of protection (Confidential or HC-AEO) applicable to each designated portion.
Pending expiration of the fourteen (14)-day designation period following receipt of the final transcript, the entire deposition transcript and all exhibits thereto shall be treated as HC-AEO material, and access shall be limited accordingly. Upon expiration of the designation period, only those portions actually designated shall retain their protected status, and all undesignated portions shall be treated as unprotected.
3.3 Method of Designation — Interrogatory Responses and Other Written discovery
Interrogatory responses, responses to requests for admission, and other written discovery responses may be designated by including the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" prominently on the face of each page of the response that contains protected information. Where only a portion of a written discovery response contains information warranting protection, the Producing Party shall use reasonable efforts to designate only the specific responses or portions thereof that warrant protection, rather than designating the entire set of responses.
3.4 Timing.  Designations shall be made at the time of production or disclosure of the discovery Material. A Producing Party may supplement or amend its designations at any time thereafter by providing written notice to the Receiving Party identifying the specific documents or materials affected and the revised designation. Upon receipt of such notice, the Receiving Party shall promptly apply the revised designation to its copies of the affected materials and shall treat the materials in accordance with the revised designation from that point forward.
3.5 Good Faith Requirement
All designations under this Order must be made in good faith and in the reasonable belief that the material in question contains information warranting the designated level of protection under the standards set forth in Sections 1.4 and 1.5 of this Order. Mass, indiscriminate, or blanket designation of entire productions, or of broad categories of documents without individualized review, is not permitted and may be the subject of a motion to the Court pursuant to CPLR 3103(a). The parties are encouraged to exercise restraint and to designate only those materials that genuinely warrant protection at the applicable level, reserving the HC-AEO designation for materials of the highest sensitivity.
SECTION 4: PERMITTED ACCESS — "CONFIDENTIAL" MATERIALS
4.1 discovery Material designated "CONFIDENTIAL" pursuant to this Order may be disclosed only to the following Qualified Persons:
(a) Counsel of Record, as defined in Section 1.7, and their attorneys, paralegals, litigation support staff, secretarial and administrative personnel, and other employees who are working on this matter under the supervision of the named attorneys;
(b) The Court, including the Hon. Althea Marchetti, J.S.C., chambers staff, court clerks, court personnel, and any Special Master or Referee appointed in this action;
(c) Officers, directors, and in-house legal personnel of the Producing Party — that is, the party that produced the designated material may share its own Confidential material with its own officers, directors, employees, and in-house counsel without restriction under this Order;
(d) Up to three (3) designated representatives of the Receiving Party (i.e., officers or employees of the opposing party), who are identified in writing to the Producing Party's counsel at least five (5) business days before the intended disclosure and who have signed the Acknowledgment and Agreement form attached hereto as Exhibit A prior to receiving access to any Confidential material;
(e) For BRB, the following individuals are pre-approved as designated representatives authorized to access Confidential material produced by Triton Harbor and/or the Kappels: Margaret Linden, Senior Vice President and General Counsel of BRB; Thomas Hargreaves, Vice President and Associate General Counsel of BRB; and one additional designated representative to be identified in writing to Triton Harbor's counsel in accordance with subsection (d) above;
(f) For Triton Harbor and the Kappels, the following individuals are pre-approved as designated representatives authorized to access Confidential material produced by BRB: Marcus J. Kappel, Chief Executive Officer of Triton Harbor; Elaine D. Kappel, Chief Financial Officer of Triton Harbor; and one additional designated representative to be identified in writing to BRB's counsel in accordance with subsection (d) above;
(g) Experts and consultants retained by any party or party's counsel for purposes of this litigation, who have signed the Acknowledgment and Agreement form attached as Exhibit A prior to receiving access to any Confidential material, including Dr. Gerald Stokes of Wentworth Risk Advisors LLC;
(h) Court reporters, videographers, and interpreters engaged for depositions or other proceedings in this action, who have signed the Acknowledgment and Agreement form attached as Exhibit A prior to receiving access to any Confidential material;
(i) Any witness to whom Confidential material is shown during a deposition or at trial, to the extent reasonably necessary for the examination of such witness, provided that the witness is informed on the record that the material is designated Confidential and is subject to the terms of this Order;
(j) Any document reproduction service, litigation support vendor, e-discovery vendor, copying service, or similar third-party service provider engaged by Counsel of Record for purposes of this action, to the extent that such access is reasonably necessary for the performance of the vendor's services.
SECTION 5: PERMITTED ACCESS — "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" MATERIALS
5.1 discovery Material designated "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" pursuant to this Order may be disclosed only to the following Qualified Persons:
(a) Counsel of Record, as defined in Section 1.7, and their attorneys, paralegals, litigation support staff, secretarial and administrative personnel, and other employees who are working on this matter under the supervision of the named attorneys;
(b) The Court, including the Hon. Althea Marchetti, J.S.C., chambers staff, court clerks, court personnel, and any Special Master or Referee appointed in this action;
(c) Officers, directors, and in-house legal personnel of the Producing Party — that is, the party that produced the designated HC-AEO material may share its own HC-AEO material with its own officers, directors, employees, and in-house counsel without restriction under this Order;
(d) Experts and consultants retained by any party or party's counsel for purposes of this litigation, who have signed the Acknowledgment and Agreement form attached as Exhibit A prior to receiving access to any HC-AEO material, including Dr. Gerald Stokes of Wentworth Risk Advisors LLC;
(e) Court reporters, videographers, and interpreters engaged for depositions or other proceedings in this action, who have signed the Acknowledgment and Agreement form attached as Exhibit A prior to receiving access to any HC-AEO material;
(f) Document reproduction services, litigation support vendors, e-discovery vendors, copying services, and similar third-party service providers engaged by Counsel of Record for purposes of this action, to the extent that such access is reasonably necessary for the performance of the vendor's services.
5.2 HC-AEO material shall NOT be disclosed to any officer, director, employee, or agent of the opposing party except as specifically provided in Section 6 of this Order. By way of illustration and without limitation:
(a) BRB's HC-AEO material shall not be disclosed to Marcus J. Kappel, Elaine D. Kappel, or any other officer, director, employee, manager, member, or agent of Triton Harbor Industries, LLC; and
(b) Triton Harbor's and the Kappels' HC-AEO material shall not be disclosed to Derek Whitmore, Joanna Reeves, Philip Aaronson, Margaret Linden, Thomas Hargreaves, or any other officer, director, employee, or agent of Belmont Ridge Bank NA.
The foregoing restriction is a material and essential term of this Order.
5.3 The parties agree that the following categories of material shall presumptively be designated HC-AEO, subject to the right of any party to challenge such designation pursuant to Section 7:
(a) BRB's internal credit risk rating analyses for the Triton Harbor credits, including without limitation the March 8, 2023 downgrade memorandum in which BRB assigned a Risk Rating 7 — Substandard classification to the Triton Harbor loan facilities;
(b) BRB's Special Assets Group internal strategy memoranda and disposition planning documents concerning the Triton Harbor credits, including all internal correspondence and presentations relating to workout, restructuring, foreclosure, or liquidation alternatives;
(c) BRB's credit committee minutes and deliberations regarding the Triton Harbor credits, including all written materials submitted to or generated by the credit committee in connection with any action taken on the Triton Harbor loan facilities;
(d) BRB's loan-loss reserve classifications and related workpapers, including any workpapers, analyses, or correspondence prepared by or exchanged with Tavrenis & Hatch CPAs LLP in connection with BRB's allowance for loan and lease losses;
(e) Personal tax returns (federal, state, and local) and personal financial statements of Marcus J. Kappel and Elaine D. Kappel, including all schedules, attachments, and supporting documentation;
(f) Triton Harbor's non-public financial projections, internal management reports, budgets, and cash flow analyses not previously disclosed to BRB in the ordinary course of the lending relationship;
(g) Personal financial details relating to the Kappel residence located at 14 Birchmont Lane, Westport, Connecticut 06880, including mortgage documentation, title records, and any appraisals or valuations thereof;
(h) Communications with, reports by, or analyses prepared by Mercer Tidwell & Associates LLC concerning Triton Harbor's restructuring analysis, financial condition, and strategic alternatives, to the extent such materials are not already subject to a separate claim of privilege or work product protection.
SECTION 6: PROCEDURE FOR DISCLOSURE OF HC-AEO MATERIAL TO A PARTY REPRESENTATIVE FOR DEPOSITION OR TRIAL PREPARATION
6.1 If a Receiving Party believes in good faith that it is necessary to disclose specific HC-AEO material to a party representative for purposes of deposition preparation or preparation for trial testimony, the Receiving Party shall provide written notice to the Producing Party at least ten (10) business days before the intended disclosure. Such notice shall identify the specific documents by Bates number, describe the HC-AEO material at issue with reasonable particularity, identify the party representative to whom disclosure is proposed (e.g., Marcus J. Kappel, Elaine D. Kappel, Derek Whitmore, Philip Aaronson, or Joanna Reeves), and set forth the reasons why such disclosure is necessary for deposition preparation or trial preparation.
6.2 The Producing Party shall have five (5) business days from receipt of such notice to object in writing to the proposed disclosure. Any objection shall state with specificity the grounds for the objection and shall identify any alternative measures proposed by the Producing Party to address the Receiving Party's stated need for the disclosure (such as providing a redacted version of the document or permitting disclosure of a summary rather than the underlying document).
6.3 If the parties are unable to resolve the dispute through meet and confer, the Receiving Party may apply to the Court by letter motion or order to show cause for an order permitting the proposed disclosure. The HC-AEO material at issue shall remain subject to the HC-AEO restrictions pending resolution of the dispute by the Court. The Court may impose such conditions on the disclosure as it deems appropriate to protect the legitimate confidentiality interests of the Producing Party while ensuring that the Receiving Party's representative is adequately prepared for deposition or trial testimony.
6.4 The parties acknowledge that this provision is particularly relevant given the deposition schedule currently in effect in this action. As of the date of this Order, the following depositions are scheduled: Derek Whitmore (Senior Vice President, Special Assets Group, BRB) on February 18, 2025; Joanna Reeves (Vice President, Commercial Lending, BRB) on February 25, 2025; Philip Aaronson (Managing Director, Credit Review, BRB) on March 4, 2025; Marcus J. Kappel (CEO, Triton Harbor) on March 11, 2025; and Elaine D. Kappel (CFO, Triton Harbor) on March 18, 2025. The parties shall use reasonable efforts to raise and resolve any disputes under this Section in advance of the applicable deposition date so as to avoid unnecessary delay or adjournment.
SECTION 7: CHALLENGING A DESIGNATION
7.1 Any Receiving Party may challenge the designation of any discovery Material as Confidential or HC-AEO at any time during the pendency of this action. A party's decision not to challenge a designation at any particular time shall not be deemed a waiver of the right to challenge such designation at a later time.
7.2 The challenging party shall first notify the Producing Party in writing (by letter or electronic mail to counsel of record) of the specific documents or categories of documents challenged and the grounds for the challenge. The notice shall identify the challenged documents by Bates number or other reasonable means of identification and shall state whether the challenging party contends that the material should be entirely undesignated or should be redesignated at a lower level of protection.
7.3 The parties shall meet and confer in good faith within ten (10) business days of the date of the challenge notice in an effort to resolve the dispute without court intervention. The meet and confer may be conducted in person, by telephone, or by videoconference.
7.4 If the dispute is not resolved through the meet-and-confer process, the challenging party may move the Court for relief pursuant to CPLR 3103. On any such motion, the burden of justifying the challenged designation shall rest on the Producing Party. The Producing Party must demonstrate, by a preponderance of the evidence, that the designated material contains information warranting the level of protection originally designated under the standards set forth in Sections 1.4 and 1.5 of this Order.
7.5 Pending resolution of any challenge, whether by agreement of the parties or by order of the Court, the challenged material shall continue to be treated at the level originally designated by the Producing Party.
SECTION 8: USE OF CONFIDENTIAL AND HC-AEO MATERIALS
8.1 All discovery Material designated as Confidential or HC-AEO pursuant to this Order shall be used solely for purposes of this litigation, bearing Index No. 654871/2024 in the Supreme Court of the State of New York, County of New York, Commercial Division. Such material shall not be used for any business, competitive, commercial, regulatory, personal, or other purpose unrelated to this litigation, including but not limited to any use in connection with business decisions, competing loan transactions, regulatory filings, or communications with governmental agencies or third parties. Notwithstanding the foregoing, nothing in this Section shall prohibit any party from using its own documents for any purpose, as provided in Section 2.4.
8.2 No Qualified Person who receives Confidential or HC-AEO material pursuant to this Order shall disclose such material, or the contents thereof, to any person who is not authorized to receive such material under the applicable provisions of this Order.
8.3 Counsel of Record shall maintain all Confidential and HC-AEO materials in a secure manner, whether in physical or electronic form, and shall take reasonable steps to prevent unauthorized access, disclosure, or dissemination. Such steps shall include, at a minimum, storing physical copies in locked offices or file cabinets, restricting electronic access through password protection or other security measures, and ensuring that Confidential and HC-AEO materials are not left unattended in areas accessible to unauthorized persons.
SECTION 9: FILING UNDER SEAL
9.1 If any party seeks to file with the Court any document, exhibit, brief, memorandum, or other submission that contains or refers to Confidential or HC-AEO material, the filing party shall comply with the applicable Commercial Division rules and Part 216 of the Uniform Rules for Trial Courts (22 NYCRR § 216.1), which governs the sealing of court records. The filing party shall not file Confidential or HC-AEO material in the public record without first complying with this Section.
9.2 Before making any such filing, the parties shall meet and confer in good faith regarding the necessity and scope of sealing. If the parties agree that sealing is appropriate, they shall submit a joint application to seal in accordance with Part 216, together with a proposed sealing order. If the parties do not agree, the filing party shall submit the material at issue provisionally under seal, together with a letter or motion explaining the basis for sealing, pending a ruling by the Court. The opposing party shall have the opportunity to be heard on any such application.
9.3 No designation of Confidential or HC-AEO under this Order shall, standing alone, constitute a finding of good cause for sealing under Part 216 or otherwise. The party seeking to seal any filing bears the burden of demonstrating good cause for sealing in accordance with the standards established by applicable law, including the presumption of public access to court records. This Order is intended to govern the handling of discovery Material among the parties and their representatives and shall not be construed as a predetermination of any sealing question.
SECTION 10: INADVERTENT PRODUCTION AND CLAWBACK
10.1 The production of any document or information in this action shall not constitute a waiver of any privilege, immunity, or protection, including the attorney-client privilege and the work product doctrine, if the production was inadvertent. This provision applies regardless of the number of documents inadvertently produced, the length of time between the production and the assertion of privilege, or the measures taken by the Producing Party to prevent inadvertent production.
10.2 If a Producing Party discovers that it has inadvertently produced a document or information that is protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or protection, the Producing Party shall promptly notify the Receiving Party in writing. Such notice shall identify the document by Bates number (or, if the document was not Bates-stamped, by such other means of identification as are reasonably practicable) and shall state the basis for the privilege or protection claim with sufficient specificity to enable the Receiving Party to assess the validity of the claim.
10.3 Upon receipt of a notice of inadvertent production under Section 10.2, the Receiving Party shall, within five (5) business days of receipt:
(a) Return to the Producing Party, sequester, or destroy all copies of the identified document or information in the Receiving Party's possession, custody, or control, including all copies in the possession of any Qualified Person to whom the document was disclosed;
(b) Refrain from using the document or its contents for any purpose pending resolution of the privilege claim, including any use in connection with depositions, motion practice, or trial; and
(c) Confirm compliance with subsections (a) and (b) in writing to the Producing Party, identifying the steps taken to return, sequester, or destroy all copies.
10.4 If the Receiving Party disputes the assertion of privilege or protection, the parties shall meet and confer in good faith in an effort to resolve the dispute. If the parties are unable to reach agreement, either party may submit the matter to the Court for in camera review and determination. Pending the Court's determination, the Receiving Party shall continue to comply with the requirements of Section 10.3.
10.5 This provision is intended to be consistent with CPLR 3103 and the common-law principles governing inadvertent disclosure of privileged materials. It is intended to supplement, not limit, any applicable common-law or statutory protections against inadvertent waiver of privilege, including any protections available under CPLR 4503 and the principles articulated by New York courts regarding the inadvertent disclosure of privileged communications.
10.6 Without limiting the generality of the foregoing, this clawback protocol shall govern situations involving the inadvertent production of privileged communications, including any internal communications between BRB personnel and BRB's General Counsel, Margaret Linden, or prior counsel, Blakemore & Stern LLP, which may be interspersed among the approximately 34,000 documents under review for production.
SECTION 11: NON-PARTY DISCOVERY MATERIALS
11.1 Any party that issues a subpoena or other form of compulsory process to a non-party for the production of documents or testimony in this action shall provide a copy of this Order to the non-party together with the subpoena or other process, and shall advise the non-party of its right to designate its productions as Confidential or HC-AEO pursuant to the procedures set forth herein.
11.2 Non-parties may designate their productions as Confidential or HC-AEO in accordance with the procedures set forth in Section 3 of this Order. Non-party productions that are designated as Confidential or HC-AEO shall be subject to the same restrictions on access, use, and disclosure as party productions bearing the same designation.
11.3 The parties anticipate that non-party discovery may be sought from, among others, the following entities and individuals:
(a) Tavrenis & Hatch CPAs LLP, BRB's external auditors, located at 1301 Avenue of the Americas, 42nd Floor, New York, New York 10019;
(b) Ridgeline Appraisal Group, Inc., the collateral appraiser engaged in connection with the Triton Harbor credits, located at 312 Elm Street, Stamford, Connecticut 06902;
(c) Mercer Tidwell & Associates LLC, Triton Harbor's restructuring advisor, located at 245 Park Avenue, 28th Floor, New York, New York 10167;
(d) Harborview Title & Escrow Co., the title insurer for certain of the collateral properties, located at 233 Broadway, Suite 1600, New York, New York 10279; and
(e) Pinnacle Omnivrel Insurance Co., the directors' and officers' liability insurer for Triton Harbor, located at 100 Constitution Plaza, Hartford, Connecticut 06103.
The foregoing list is illustrative and shall not limit the applicability of this Order to discovery obtained from other non-parties.
SECTION 12: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
12.1 Before any Qualified Person (other than Counsel of Record and the Court) is permitted to access any discovery Material designated as Confidential or HC-AEO, such person must execute the Acknowledgment and Agreement to Be Bound by Stipulated Protective Order in the form attached hereto as Exhibit A. A copy of the executed Acknowledgment shall be provided to the counsel offering access prior to any disclosure of designated material to the executing individual.
12.2 Executed copies of the Acknowledgment and Agreement form shall be retained by the counsel providing access and shall be maintained throughout the pendency of this action. Executed Acknowledgment forms shall be available for inspection by the Producing Party or the Court upon request.
12.3 Counsel of Record, as defined in Section 1.7, are deemed bound by the terms of this Order by virtue of their participation in and execution of the underlying stipulation, without the need to execute a separate Acknowledgment and Agreement form.
SECTION 13: DURATION AND SURVIVAL
13.1 This Order shall remain in full force and effect during the pendency of this action and for a period of two (2) years following the final disposition of all claims, counterclaims, crossclaims, and third-party claims in this action, including the exhaustion or expiration of all rights of appeal. For purposes of this Section, "final disposition" shall mean the entry of a final, non-appealable judgment or order disposing of all claims and counterclaims, or the execution of a settlement agreement resolving all claims and counterclaims, whichever occurs later.
13.2 Within sixty (60) days of the conclusion of this action (including the resolution of any appeals), each Receiving Party shall, at the election of the Producing Party, either return to the Producing Party or destroy all Confidential and HC-AEO materials in its possession, custody, or control, including all copies, excerpts, summaries, and compilations thereof. The Receiving Party shall certify in writing to the Producing Party that it has complied with this obligation, specifying whether the materials were returned or destroyed. Notwithstanding the foregoing, Counsel of Record may retain one (1) archival copy of all Confidential and HC-AEO materials in a secure location for the sole purpose of maintaining a record of the litigation and complying with applicable professional responsibility and document retention obligations. Any such archival copies shall remain subject to the terms of this Order.
SECTION 14: REMEDIES FOR BREACH
14.1 Any breach of this Order may be enforced by any appropriate remedy available to the Court, including but not limited to contempt of court, injunctive relief (including temporary restraining orders and preliminary and permanent injunctions), sanctions (including monetary sanctions and adverse inference instructions), and an award of reasonable attorneys' fees and costs incurred in connection with the enforcement of this Order.
14.2 Nothing in this Order limits, restricts, or affects any other legal remedies available to any party or non-party for the unauthorized disclosure of confidential information, including claims for breach of contract, tortious interference, misappropriation, or any other cause of action that may arise under applicable law.
SECTION 15: MODIFICATION
15.1 This Order may be modified by the Court at any time upon application of any party for good cause shown, upon such notice to the opposing parties as the Court may direct.
15.2 The parties may modify this Order by written stipulation signed by all counsel of record, provided that any such modification shall be submitted to the Court for approval and shall not take effect until so-ordered by the Court.
SECTION 16: RESERVATION OF RIGHTS
16.1 Nothing in this Order shall be construed as a waiver of any party's right to object to the production or admissibility of any discovery Material on any ground other than confidentiality, including but not limited to objections based on relevance, privilege, burdensomeness, proportionality, or any other ground recognized by the CPLR or applicable law.
16.2 Nothing in this Order shall be construed as an admission by any party that any particular document, category of documents, or information is or is not confidential, proprietary, or trade secret in nature. The designation of material under this Order is made solely for purposes of this litigation and shall have no bearing on the characterization of such material in any other proceeding or context.
16.3 This Order does not affect, modify, or limit any party's obligations with respect to the identification, preservation, and collection of documents and electronically stored information, as set forth in applicable law, any litigation hold notices issued by the parties, or any prior orders of this Court.
SECTION 17: GOVERNING LAW
17.1 This Order shall be governed by and construed in accordance with the laws of the State of New York, including the Civil Practice Law and Rules, the applicable rules of the Commercial Division of the Supreme Court, and the Uniform Rules for Trial Courts, as the same may be amended from time to time.
STIPULATION AND CONSENT OF COUNSEL
The undersigned counsel of record for the parties hereby stipulate and consent to the entry of this Stipulated Protective Order Governing Confidential discovery Materials, and respectfully request that the Court so-order the same.
For Plaintiff/Counterclaim Defendant BELMONT RIDGE BANK NA:
CALDERWOOD & HARKNESS LLP
By: ________
Linda Osei, Esq. 600 Lexington Avenue, 30th Floor New York, New York 10022 Telephone: (212) 555-4100 Facsimile: (212) 555-4101 losei@calderwoodharkness.com
Attorneys for Plaintiff/Counterclaim Defendant Belmont Ridge Bank NA
Date: December 20, 2024
For Defendants/Counterclaim Plaintiffs TRITON HARBOR INDUSTRIES, LLC, MARCUS J. KAPPEL, and ELAINE D. KAPPEL:
KESTREL VOSS & HUANG LLP
By: ________
Theodore Huang, Esq. 780 Third Avenue, 24th Floor New York, New York 10017 Telephone: (212) 555-7800 Facsimile: (212) 555-7801 thuang@kestrelvoss.com
Attorneys for Defendants/Counterclaim Plaintiffs Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel
Date: December 20, 2024
SO ORDERED
SO ORDERED this 20th day of December, 2024.
________________________________________
Hon. Althea Marchetti Justice, Supreme Court of the State of New York New York County, Commercial Division
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER
Case: Belmont Ridge Bank NA v. Triton Harbor Industries, LLC, Marcus J. Kappel, and Elaine D. Kappel, Index No. 654871/2024, Supreme Court of the State of New York, County of New York, Commercial Division.
Name of Individual: __________
Title/Position: __________
Employer/Affiliation: __________
Business Address: __________
________________________________________
________________________________________
I, the undersigned, hereby certify, acknowledge, and agree as follows:
1.  I have read in its entirety the Stipulated Protective Order Governing Confidential discovery Materials dated December 20, 2024 (the "Protective Order"), entered by the Hon. Althea Marchetti, J.S.C., in the above-captioned action.
2.  I understand the terms and provisions of the Protective Order, including the restrictions on the use, disclosure, and dissemination of materials designated as "CONFIDENTIAL" and "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY."
3.  I agree to be bound by the Protective Order in full and to comply with all of its terms, conditions, and restrictions.
4.  I agree to hold all Confidential and Highly Confidential — Attorneys' Eyes Only materials in strict confidence and not to disclose such materials, or any information contained therein, to any person who is not authorized to receive such materials under the Protective Order.
5.  I agree to use materials designated as Confidential or Highly Confidential — Attorneys' Eyes Only solely for purposes of the above-captioned litigation (Index No. 654871/2024) and for no other business, commercial, competitive, personal, regulatory, or other purpose.
6.  I understand that any violation of the Protective Order may subject me to sanctions, contempt of court, and other remedies as the Court may deem appropriate.
7.  I hereby submit to the jurisdiction of the Supreme Court of the State of New York, County of New York, Commercial Division, for purposes of the enforcement of the Protective Order.
8.  Upon the conclusion of this litigation (including any appeals), or upon the request of the counsel who provided me with access to designated materials, I agree to return or destroy all Confidential and Highly Confidential — Attorneys' Eyes Only materials in my possession, custody, or control, and to certify such return or destruction in writing.
________________________________________
Signature
________________________________________
Printed Name
________________________________________
Date
Witness (optional):
________________________________________
Signature of Witness
________________________________________
Printed Name of Witness
________________________________________
Date
This Acknowledgment and Agreement form shall be retained by the counsel providing access and shall be available for inspection by the Producing Party or the Court upon request, in accordance with Section 12 of the Stipulated Protective Order.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK COMMERCIAL DIVISION

BELMONT RIDGE BANK NA,

STIPULATED PROTECTIVE ORDER GOVERNING CONFIDENTIAL DISCOVERY MATERIALS

PREAMBLE AND RECITALS

SECTION 1: DEFINITIONS

SECTION 2: SCOPE OF THE PROTECTIVE ORDER

SECTION 3: DESIGNATION OF CONFIDENTIAL AND HC-AEO MATERIALS

SECTION 7: CHALLENGING A DESIGNATION

SECTION 8: USE OF CONFIDENTIAL AND HC-AEO MATERIALS

SECTION 9: FILING UNDER SEAL

SECTION 10: INADVERTENT PRODUCTION AND CLAWBACK

SECTION 11: NON-PARTY DISCOVERY MATERIALS

SECTION 12: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

SECTION 13: DURATION AND SURVIVAL

SECTION 14: REMEDIES FOR BREACH

SECTION 15: MODIFICATION

SECTION 16: RESERVATION OF RIGHTS

SECTION 17: GOVERNING LAW

STIPULATION AND CONSENT OF COUNSEL

CALDERWOOD & HARKNESS LLP

KESTREL VOSS & HUANG LLP

SO ORDERED

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER

Record

Parties

Dates

Amounts