Fox v. Starbucks Corporation

Opinion

Case 1:19-cv-04650-AJN Document 27 Filed12/02/19 Page 1 of □□

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK RAFAEL FOX, PAUL D’AURIA, and JILL | □

SHWINER, | No.: 19-CV-4650 (AJN)(SN) DEC 0 □ i Plaintiffs, □□

vs. STIPULATED CONFIDENTIALITY AGREEMENT STARBUCKS CORPORATION d/b/a AND PROTECTIVE ORDER STARBUCKS COFFEE COMPANY, Defendant.

ALISON J. NATHAN, U.S.D.J.: WHEREAS, all of the parties to this action (collectively, the “Parties” and each

individually, a “Party”) request that this Court issue a protective order pursuant to Federal Rule

of Civil Procedure 26(c) to protect the confidentiality of nonpublic and competitively sensitive

information that they may need to disclose in connection with discovery in this action;

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

WHEREAS, this Court finds that good cause exists for issuance of an appropriately

tailored confidentiality order governing the pretrial phase of this action;

IT IS HEREBY ORDERED that the Parties to this action, their respective officers,

agents, servants, employees, and attorneys, any other person in active concert or participation

with any of the foregoing, and all other persons with actual notice of this Order will adhere to the

following terms, upon pain of contempt: 1. With respect to “Discovery Material” (i.e., information of any kind produced or

disclosed in the course of discovery in this action) that a person has designated as “Confidential”

pursuant to this Order, no person subject to this Order may disclose such Confidential Discovery

Material to anyone else except as expressly permitted hereunder:

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2. The Party or person producing or disclosing Discovery Material (each, a

“Producing Party”) may designate as Confidential only the portion of such material that it

reasonably and in good faith believes consists of:

(a) previously non-disclosed financial information (including without □ limitation profitability reports or estimates, percentage fees, design fees, royalty rates, minimum guarantee payments, sales reports, and sale margins); (b) previously non-disclosed material relating to ownership or control of any non-public company; (c) previously non-disclosed business plans, product-development information, or marketing plans; (d) personal health information or any other information of a personal or intimate nature regarding any individual; or

(e) any other category of information given confidential status by this Court after the date of this Order. 3. With respect to the Confidential portion of any Discovery Material other than

deposition transcripts and exhibits, the Producing Party or its counsel may designate such portion

as “Confidential” by: (a) stamping or otherwise clearly marking as “Confidential” the protected

portion in a manner that will not interfere with legibility or audibility; and (b) producing for

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

redacted. 4. A Producing Party or its counsel may designate deposition exhibits or portions of

deposition transcripts as Confidential Discovery Material either by: (a) indicating on the record

during the deposition that a question calls for Confidential information, in which case the

reporter will bind the transcript of the designated testimony in a separate volume and mark it as

“Confidential Information Governed by Protective Order;” or (b) notifying the reporter and all

counsel of record, in writing, within 30 days after a deposition has concluded, of the specific

pages and lines of the transcript that are to be designated “Confidential,” in which case all

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counsel receiving the transcript will be responsible for marking the copies of the designated

transcript in their possession or under their control as directed by the Producing Party or that

person’s counsel. During the 30-day period following a deposition, all Parties will treat the entire

deposition transcript as if it had been designated Confidential.

5. If at any time before the termination of this action a Producing Party realizes that

it should have designated as Confidential some portion(s) of Discovery Material that it

previously produced without a Confidential designation, the Producing Party may so designate

such material by notifying all Parties in writing. Thereafter, all persons subject to this Order will

treat such designated portion(s) of the Discovery Material as Confidential. In addition, the

Producing Party shall provide each other Party with replacement versions of such Discovery

Material that bears the “Confidential” designation within two business days of providing such

notice. 6. Nothing contained in this Order will be construed as: (a) a waiver by a Party or

person of its right to object to any discovery request, (b) a waiver of any privilege or protection;

or (c) a ruling regarding the admissibility at trial of any document, testimony, or other evidence.

7. If, in connection with this litigation, a Party inadvertently discloses information

subject to a claim of attorney-client privilege or attorney work product protection (“‘Inadvertently

Disclosed Information”), such disclosure shall not constitute or be deemed a waiver or forfeiture

of any claim of privilege or work product protection with respect to the Inadvertently Disclosed

Information and its subject matter. 8. If a disclosing party makes a claim of inadvertent disclosure, the receiving party

shall, within five business days, return or destroy all copies of the Inadvertently Disclosed

Information, and provide a certification of counsel that all such information has been returned or

destroyed. Within five business days of the notification that such Inadvertently Disclosed

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Information has been returned or destroyed, the disclosing party shall produce a privilege log

with respect to the Inadvertently Disclosed Information. 9. The receiving party may move the Court for an Order compelling production of

the Inadvertently Disclosed Information but shall not assert as a ground for entering such an

Order the fact or circumstances of the inadvertent production. The disclosing party retains the

burden of establishing the privileged or protected nature of any Inadvertently Disclosed

Information. Nothing in this Order shall limit the right of any party to request an in camera

review of the Inadvertently Disclosed Information.

10. Where a Producing Party has designated Discovery Material as Confidential,

other persons subject to this Order may disclose such information only to the following persons:

(a) the Parties to this action, their insurers, and counsel to their insurers;

(b) counsel retained specifically for this action, including any paralegal, clerical, or other assistant that such outside counsel employs and assigns to this matter; (c) outside vendors or service providers (such as copy-service providers and document-management consultants) that counsel hire and assign to this matter; (d) any mediator or arbitrator that the Parties engage in this matter or that this Court appoints, provided such person has first executed a Non-Disclosure Agreement in the form annexed as Exhibit A hereto;

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

(6) any witness who counsel for a Party in good faith believes may be called to testify at trial or deposition in this action, provided such person has first executed a Non-Disclosure Agreement in the form annexed as Exhibit A hereto; (g) any person a Party retains to serve as an expert witness or otherwise provide specialized advice to counsel in connection with this action, provided such person has first executed a Non-Disclosure Agreement in the form annexed as Exhibit A hereto; (h) stenographers engaged to transcribe depositions the Parties conduct in this action; and

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@ this Court, including any appellate court, its support personnel, and court reporters. 11. Before disclosing any Confidential Discovery Material to any person referred to

in subparagraphs 7(d), 7(f), or 7(g) above, counsel must provide a copy of this Order to such

person, who must sign a Non-Disclosure Agreement in the form annexed as Exhibit A hereto

stating that he or she has read this Order and agrees to be bound by its terms. Said counsel must

retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to opposing

counsel either before such person is permitted to testify (at deposition or trial) or at the

conclusion of the case, whichever comes first.

12. This Order binds the Parties and certain others to treat as Confidential any

Discovery Materials so classified. The Court has not, however, made any finding regarding the

confidentiality of any Discovery Materials, and retains full discretion to determine whether to

afford confidential treatment to any Discovery Material designated as Confidential hereunder.

13. Filing Confidential Discovery Materials With the Court:

(a) Redactions Not Requiring Court Approval. The parties are referred to the

EGovernment Act of 2002 and the Southern District’s ECF Privacy Policy (“Privacy Policy”)

and reminded not to include, unless necessary, the five categories of “sensitive information” in

their submissions (i.e., social security numbers [use the last four digits only], names of minor

children [use the initials only], dates of birth [use the year only], financial account numbers [use

the last four digits only], and home addresses [use only the City and State]). Parties may redact

the five categories of “sensitive information” and the six categories of information requiring

caution (i.e., personal identifying number, medical records (including information regarding

treatment and diagnosis), employment history, individual financial information, proprietary or

trade secret information, and information regarding an individual’s cooperation with the

government), as described in the Privacy Policy, without Court approval.

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(b) Redactions Requiring Court Approval. Except for redactions permitted by

the preceding sub-paragraph (a), all redactions require Court approval. To be approved,

redactions must be narrowly tailored to serve whatever purpose justifies them and otherwise

consistent with the presumption in favor of public access to judicial documents. See, €.8.;

Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 2d Cir. 2006). In general, the

parties’ consent or the fact that information is subject to a confidentiality agreement between

litigants is not, by itself, a valid basis to overcome the presumption in favor of public access to

judicial documents. See, e.g., In re Gen. Motors LLC Ignition Switch Litig., No. 14-MD-2543

(JMF), 2015 WL 4750774, at *4 (S.D.N.Y. Aug. 11, 2015). The party seeking leave should file

the redacted document(s) on ECF. At the same time, the party should (1) file (on ECF, if

possible, and otherwise by e-mail) a letter-motion justifying and seeking leave for the redactions;

and (2) e-mail to the Court (at NathanNYSDChambers@nysd.uscourts.gov) (i) a copy of the

relevant document(s) in highlighted form (i.e., with the words, phrases, or paragraphs to be

redacted highlighted); and (ii) a partial, loose leaf set of solely those pages on which the party

seeks to redact material. One courtesy-copy of all papers associated with the request shall also be

mailed or hand-delivered to the Court. If a request for redactions is based on another party’s

designation of information as confidential, the parties shall confer and jointly submit the request

for redactions. If the application for redaction is approved, the Court will file and maintain the

unredacted copy of the document under seal.

(c) Method of Submission. Any document to be filed under seal or with

redactions must be submitted to the Court (without redactions) via the Court’s email address

(NathanNY SDChambers@nysd.uscourts.gov). Parties may not submit documents exclusively in

hard copy.

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14. Any Party who objects to any designation of confidentiality may at any time

before the trial of this action serve upon counsel for the Producing Party a written notice stating

with particularity the grounds of the obj ection. If the Parties cannot reach agreement promptly,

counsel for all affected Parties will address their dispute to this Court in accordance with

paragraph 1(C) of this Court’s Individual Practices. 15. Any Party who requests additional limits on disclosure (such as “attorneys eyes

only” in extraordinary circumstances), may at any time before the trial of this action serve upon

counsel for the recipient Parties a written notice stating with particularity the grounds of the

request. If the Parties cannot reach agreement promptly, counsel for all affected Parties will

address their dispute to this Court in accordance with Rule 1(C) of this Court’s Individual Rules

of Practice in Civil Cases. 16. Recipients of Confidential Discovery Material under this Order may use such

material solely for the prosecution and defense of this action and any appeals thereto, and not for

any other purpose or in any other litigation proceeding. Nothing contained in this Order,

however, will affect or restrict the rights of any Party with respect to its own documents or

information produced in this action. 17. Nothing in this Order will prevent any Party from producing any Confidential

Discovery Material in its possession in response to a lawful subpoena or other compulsory

process, or if required to produce by law or by any government agency having jurisdiction,

provided that such Party gives written notice to the Producing Party as soon as reasonably

possible, and if permitted by the time allowed under the request, at least 10 days before any

disclosure. Upon receiving such notice, the Producing Party will bear the burden to oppose

compliance with the subpoena, other compulsory process, or other legal notice if the Producing

Party deems it appropriate to do so.

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18. Each person who has access to Discovery Material designated as Confidential

pursuant to this Order must take all due precautions to prevent the unauthorized or inadvertent

disclosure of such material. 19. Within 60 days of the final disposition of this action—including all appeals—all

recipients of Confidential Discovery Material must either return it—including all copies

thereof—to the Producing Party, or, upon permission of the Producing Party, destroy such

material— including all copies thereof. In either event, by the 60-day deadline, the recipient

must upon request of the Producing Party certify its return or destruction by submitting a written

certification to the Producing Party that affirms that it has not retained any copies, abstracts,

compilations, summaries, or other forms of reproducing or capturing any of the Confidential

Discovery Material. Notwithstanding this provision, the attorneys that the Parties have

specifically retained for this action may retain an archival copy of all pleadings, motion papers,

transcripts, expert reports, legal memoranda, correspondence, or attorney work product, even if

such materials contain Confidential Discovery Material. Any such archival copies that contain or

constitute Confidential Discovery Material remain subject to this Order.

20. This Order will survive the termination of the litigation and will continue to be

binding upon all persons subject to this Order to whom Confidential Discovery Material is

produced or disclosed. This Court will retain jurisdiction over all persons subject to this Order to

the extent necessary to enforce any obligations arising hereunder or to impose sanctions for any

contempt thereof. □□□ /// /// ///

Case 1:19-cv-04650-AJN Document 27 Filed 12/02/19 Page 9 of 10 SO STIPULATED AND AGREED.

Ariel Y. Graff Joseph E. Field Filosa Graff LLP Littler Mendelson, P.C. 111 John Street, Suite 2510 900 Third Avenue New York, NY 10038 New York, NY 10022-3298 Tel: (212) 203-3473 Tel: (212) 583-2660 agraff@filosagraff.com JField@littler.com COUNSEL FOR PLAINTIFFS COUNSEL FOR DEFENDANT Dated: 11/22/2019 Dated: New York, NY New York, NY

\ SO ORDERED. | | A Dated: Ve t 3 , Val oom j ; □ New York, NY LU” * ALISON J. NATHAN United States District Judge

Exhibit A to Stipulated Confidentiality Agreement and Protective Order

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK RAFAEL FOX, PAUL D’AURIA, and JILL H SHWINER, Case No.: 19-CV-4650 (AJN)(SN) Plaintiffs, vs. NON-DISCLOSURE AGREEMENT STARBUCKS CORPORATION d/b/a STARBUCKS COFFEE COMPANY, Defendant. a L, , acknowledge that I have read and understand the Protective Order in this action governing the non-disclosure of those portions of Discovery Material that have been designated as Confidential. I agree that I will not disclose such

Confidential Discovery Material to anyone other than for purposes of this litigation and that at

the conclusion of the litigation I will return all discovery information to the Party or attorney from whom I received it. By acknowledging these obligations under the Protective Order, I

understand that I am submitting myself to the jurisdiction of the United States District Court

for the Southern District of New York for the purpose of any issue or dispute arising hereunder

and that my willful violation of any term of the Protective Order could subject me to

punishment for contempt of Court.

Name: Date: