Joshi, et al v. Starbucks Corporation

Filing 55

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Dale A. Drozd on 8/27/09. (Mena-Sanchez, L)

1 JASON H. WILSON (State Bar No. 140269) 2 3 4 5 6 7

EILEEN M. AHERN (State Bar No. 216822) WILLENKEN WILSON LOH & LIEB LLP 707 Wilshire Boulevard, Suite 3850 Los Angeles, CA 90071 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] [e-mail] STARBUCKS CORPORATION UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Case No. 2:09-CV-00095-FCD-DAD STIPULATED PROTECTIVE ORDER

8 Attorneys for Defendant 9 10 11 12 13

14 RAKESH JOSHI and PRANIKA 15 16 17 18

JOSHI,

Plaintiffs, vs.

STARBUCKS CORPORATION, a 19 Washington corporation, and DOES 1 20 through 10, inclusive,
21 22 23 24 25 26 27 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

Defendant.

1

In connection with the production of confidential documents and other

2 confidential information in this action, plaintiffs Rakesh Joshi and Pranika Joshi 3 ("Plaintiffs") and defendant Starbucks Corporation ("Defendant"), through their 4 respective counsel (collectively, the "Parties" or individually, "Party"), hereby enter 5 into this Stipulated Protective Order ("Stipulated Protective Order"). 6 7 8 9 10 11 12

I.

PURPOSE OF THIS PROTECTIVE ORDER The purpose of this Stipulated Protective Order is to provide a means for

limiting access to and use and disclosure of Confidential Documents or Information that are produced in this action. Any unauthorized disclosure of Confidential Documents or Information in violation of this Order may be subject to discipline by the contempt powers of this Court. DESIGNATION OF "CONFIDENTIAL DOCUMENTS OR INFORMATION" The Parties may designate such documents or information as "Confidential" in

13 II. 14 15

16 accordance with the following procedures: 17 18 19 20 21 22 23 24 25 26 27 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

A.

"Confidential" Documents or Information.

Either Party may designate documents or information as "Confidential" if it has a reasonable good faith belief that the disclosure of said documents or information absent the protections of this order will have the effect of causing harm to the producing party's competitive position or privacy interests or a third party's privacy interests because the documents or information embody (a) sensitive, competitive or other confidential business information; (b) sensitive financial information; (c) sensitive product information; (d) sensitive personal information; (e) other sensitive material that the Party does not customarily disclose to the public; or

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1 (f) documents or information that the Party currently maintains as Confidential and is 2 seeking to maintain as Confidential for purposes of this action. 3 4 5 6 7 8 9

B.

Time of Designation

Unless otherwise agreed between counsel for the Parties, the designation of Confidential Documents or Information shall be made at the time of the production of documents. C. Manner of Designation

The designation of Confidential Documents or Information shall be made in 1. 2. For documents, by placing the notation "Confidential" on each page of For tangible items, including any documents or information produced on

10 the following manner: 11 12 such document; 13 14 magnetic disks or other computer related media, by placing the notation 15 "Confidential" on the object and, if applicable, on the container thereof or if such are 16 not practicable, as otherwise agreed by the Parties. In the event either Party generates 17 any "hard copy" or printout from any "Confidential Material," that Party must 18 immediately stamp each page "Confidential", and the hard copy or printout shall be 19 treated as "Confidential Information pursuant to this Stipulated Protective Order." 20 21 22 23 24 25 26 27 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

D. 1.

Retroactive Designation Inadvertent production of any Confidential Documents or Information

without a designation of confidentiality will not be deemed to waive a later claim as to confidentiality or privilege, or prevent the Party claiming said confidentiality from re-designating such documents or information as "Confidential" promptly after discovery of the inadvertent production.

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2.

Within a reasonable time after production, either Party may retroactively

2 designate (or withdraw a designation) of Confidential Documents or Information, 3 regarding any material that it has produced, provided however, that such retroactive 4 designation (or withdrawal) shall be in accordance with the terms of this Order. Such 5 retroactive designation (or withdrawal) shall be accomplished by notifying counsel 6 for the non-designating Party in writing of such retroactive designation (or 7 withdrawal). Upon receipt of any such written re-designation, counsel (i) shall not 8 make any further disclosure or communication of such retroactively designated 9 material except as provided for in this Order; (ii) shall take reasonable steps to notify 10 all persons known to have possession of any retroactively designated material of the 11 effect of such re-designation under this Order; and (iii) shall take reasonable steps to 12 procure all copies of such retroactively designated material from any persons known 13 to have possession of any such retroactively designated material who are not entitled 14 to receipt under this Order. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

E.

Resolution of Disputes Regarding Designation

If either Party, at any time, wishes to have the "Confidential" designation of any particular Confidential Documents or Information removed or changed, that Party shall first request in writing that the Party having made the designation at issue change its designation. Thereafter, the Parties shall make good faith efforts to resolve the dispute. If the designating Party refuses to agree to remove or change the designation, then the Party that requests that the designation be so removed may make a motion before this Court for an order removing or changing the designation; provided, however, that the designating Party shall have the burden of proving that such particular Confidential Document or Information are properly designated as "Confidential" pursuant to paragraph III. At all times during the process of challenging a designation, the Parties shall treat the Confidential Documents or

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1 Information as originally designated until a change is agreed to or the motion is 2 decided by the Court and written notice of such decision is served on the Parties. 3

Any motion filed with respect to this Stipulated Protective Order or documents

4 labeled "Confidential" must comply with the local rules of the United States District 5 Court for the Eastern District of California. 6 7

F.

Designation of Third Party Documents.

Documents and/or information produced by a third party in response to a

8 subpoena or during deposition in the course of this litigation may involve receipt of 9 information, documents, things or testimony which include, contain or comprise 10 protected information that may or may not be appropriate for "Confidential" 11 designation under this Order. Unless otherwise agreed in writing between counsel 12 for the parties, documents and information so produced by a third party shall be 13 treated as follows: First of all, all such documents and information shall 14 automatically be deemed to be and shall be treated as "Confidential" for five [5] 15 business days following their actual receipt by both counsel for Plaintiffs and counsel 16 for Defendant in this action, in order to enable each such counsel to determine 17 whether in their view any protected information is embodied therein. If no 18 designation of the information as "Confidential" by the Designating Party is received 19 by the non-Designating Party within five [5] business days after said production, then 20 the information will not be protected by this Protective Order except pursuant to 21 subsequent designation by a party hereto or pursuant to a subsequent agreement of 22 the parties or Court order; if however a written designation of "Confidential" is made 23 by a Designating Party and is received by the non-Designating Party within five [5] 24 business days after said production of documents or information by the non-party, 25 then the information will be subject to this Protective Order and will be deemed to be 26 "Confidential" (as requested by the Designating Party); provided, however, that the 27 designation may be challenged as any such designation. 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

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1

Lastly, to the extent third party documents or information contains information

2 that is confidential and/or proprietary to the third party, said third party can avail 3 itself of the protections set forth in this Order and designate documents and/or 4 information it products accordingly by executing this Order and agreeing to be bound 5 by its terms. 6 7 8 9 10 11

III.

PERSONS TO WHOM CONFIDENTIAL DOCUMENTS OR INFORMATION MAY BE DISCLOSED A. Disclosure of Documents or Information Designated as "Confidential" Documents or Information designated as "Confidential" may be disclosed and 1. 2. Counsel of record; Expert witnesses or consultants retained by the Parties or their respective

12 copies may be provided only to: 13 14

15 counsel in connection with this action who have complied with paragraph IV(C), 16 below; 17

3. 4. 5. 6.

Outside court reporting services and court reporters as may be This Court and its personnel, or any other tribunal of competent Any mediator or arbitrator selected by the Parties to mediate or arbitrate Representatives of the Parties.

18 reasonably necessary in connection with the preparation or conduct of this action; 19 20 jurisdiction having involvement in this matter and its personnel; and 21 22 this action. 23 24 25 26 27 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

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1 2 3

B.

Additional Authorized Disclosure of Documents or Information Designated as "Confidential"

Notwithstanding anything to the contrary in paragraphs IV(A) above,

4 particular Confidential Documents or Information that have been designated as 5 "Confidential" may be disclosed and copies may be provided: 6

1.

To Persons who are explicitly named on the document as the authors or

7 addressees or to persons who may be shown to be an author or recipient of any 8 particular document; 9

2. 3. 4.

To any other persons with the prior written consent of the designating To any other persons with the prior authorization of this Court or any If a document designated as "Confidential" refers to the conduct or

10 Party; and 11 12 other tribunal of competent jurisdiction having involvement in this matter. 13 14 affairs of a potential witness, the Party's counsel of record may and shall discuss such 15 conduct or affairs with such person without revealing the existence of the document, 16 or its authors or source. 17 18 19 20 21 22 23 24 25 26 27 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

C.

Disclosure to Experts or Consultants

Prior to disclosing or providing copies of any Confidential Documents or Information to any expert or consultant pursuant to paragraphs IV(A) or IV(B), above, the Parties shall first obtain the agreement of the expert, consultant or anyone else to whom such disclosure will be made to be bound by the terms of this Stipulated Protective Order as set forth in the attached "Acknowledgment and Agreement To Be Bound." Specifically, the expert or consultant shall acknowledge that, during the course of his or her retention, the expert or consultant may have access to, and become acquainted with Confidential Documents or Information, which are regularly used in the operation of the businesses of the designating Party and in which the

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1 designating Party has an expectation of confidentiality. The expert or consultant 2 shall agree not to disclose such Confidential Documents or Information, directly or 3 indirectly, to any person or entity not subject to this Stipulated Protective Order or 4 use them in any way outside the specific scope of his/her retention as an expert 5 witness in this action, or at any time thereafter. 6 7 8 9 10 11 12

D.

Return of Confidential Documents or Information by Experts and Consultants

Confidential Documents or Information disclosed to any expert or consultant may be retained by such expert or consultant provided that such expert or consultant subsequently destroys any and all copies of such Confidential Documents or Information upon the termination of their engagement. USE OF CONFIDENTIAL DOCUMENTS OR INFORMATION A. Use of Confidential Documents or Information Generally

13 IV. 14 15 16 17 18 19 20 21 22 23 24 25 26

Confidential Documents or Information shall only be used by the Parties, their respective agents, and any other persons to whom such Confidential Documents or Information may be disclosed pursuant to this Stipulated Protective Order: (1) in this action; (2) as otherwise compelled by lawful process (provided the designating Party is given a reasonable notice to object); or (3) as otherwise required by law. Notwithstanding the foregoing, nothing in this Stipulated Protective Order shall prevent or limit the designating Party from disclosing Confidential Documents or Information they so designate. B. 1. Use of Confidential Documents or Information in the Conduct of this Action Confidential Documents or Information may be used by counsel for the

27 non-designating Party in good faith in connection with investigating this action, 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

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1 provided that the Confidential Documents or Information are protected pursuant to 2 the terms and conditions of this Stipulated Protective Order. 3

2.

The terms of this Stipulated Protective Order do not apply to evidence

4 presented at court proceedings and/or trial in this matter. Any protective measures 5 relating to Confidential Documents or Information should be taken up with the 6 judicial officer conducting the particular proceeding at the appropriate time. 7

3.

If either Party seeks to file pleadings or other documents with this Court

8 that contains the other Party's Confidential Documents or Information, it may do so 9 only if: (a) reasonably necessary to the proceeding; and (b) the filing Party informs 10 the designating Party of such filing concurrently with the filing of such documents 11 with the Court. Pursuant to Local Rule 39-141, the proposed filing shall be 12 accompanied by an application to file the papers, or the portion thereof containing the 13 protected information, under seal. The application shall be directed to the judge to 14 whom the underlying papers are directed. In addition, such pleadings shall not be 15 filed electronically but shall be filed in person or by mail pursuant to this Court's 16 procedures for such filing. 17 18 19 20 21 22 23 24 25 26 27 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

V.

RETURN OF CONFIDENTIAL DOCUMENTS, TESTIMONY, OR INFORMATION Upon written request after the final conclusion of this action, the Parties shall: A. Return to the other Party any and all Confidential Documents or

Information so designated by that Party and all copies thereof in its possession, custody and control or otherwise destroy such documents; B. Ensure that all Confidential Documents or Information in the possession, custody or control of any permitted parties or third parties are returned to the designating Party or are otherwise destroyed; and

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1

C.

Destroy all notes, memoranda or other documents that contain excerpts

2 from any of the Confidential Documents or Information. Notwithstanding the 3 foregoing, attorney work product, attorney-client communications, and information 4 derived from Confidential Documents or Information may be retained by the non5 designating Party and its counsel. 6 7 8 9 10 11 12 13 14 15 16

VI.

PUBLIC DOCUMENTS None of the restrictions set forth in this Stipulated Protective Order shall apply

to any documents or other information that become public knowledge by means not in violation of the provisions of this Stipulated Protective Order. Nothing in this Stipulated Protective Order shall prevent either Party from using any information that it properly possessed prior to receipt of any Confidential Documents or Information from the designating Party or that is discovered independently by the non-designating Party. The terms for the treatment of Confidential Documents or Information pursuant to the Stipulated Protective Order shall be effective only upon the entry of this Stipulated Protective Order.

17 VII. NO PROBATIVE VALUE 18

This Stipulated Protective Order shall not aggregate or diminish any

19 contractual, statutory or other legal obligation or right of any party or person with 20 respect to any Confidential Documents or Information. The fact that information is 21 designated "Confidential" under the Stipulated Protective Order shall not be deemed 22 to be determinative of what a trier of fact may determine to be confidential or 23 proprietary. This Stipulated Protective Order shall be without prejudice to the right 24 of any party to bring information before this Court, regardless of (a) whether any 25 particular material is or is not Confidential, or (b) whether any particular information 26 or material is or is not entitled to a greater or lesser degree of protection under the 27 terms of this Stipulated Protective Order, provided that in doing so, the party 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

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1 complies with the procedures set forth herein. The fact that any information is 2 disclosed, used, or produced in any proceeding in this action shall not be offered in 3 any other action or proceeding before this or any other Court, agency or tribunal as 4 evidence of or concerning whether or not such information is admissible, confidential 5 or proprietary. 6 7 8 9 10

VIII. NO IMPLIED WAIVER OF ADMISSION No party shall be obligated to challenge the proprietary nature of any designation of "Confidential" information, and the failure to do so shall not constitute a waiver or otherwise preclude a subsequent challenge to the designation. MODIFICATION OF THIS STIPULATED PROTECTIVE ORDER The Parties hereto may modify the terms of this Stipulated Protective Order by

11 IX. 12

13 further stipulation. However, no modification by the parties shall have the force or 14 effect of a court order unless the Court approves the modification. Alternatively, any 15 party hereto may seek an order of this Court to modify the terms of this Stipulated 16 Protective Order. Any motion seeking such modification must be served upon all 17 counsel of record and filed in accordance with this Court's filing procedures. 18 // 19 // 20 21 22 23 24 25 26 27 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

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1 X. 2

EXECUTION AND COUNTERPART This Stipulated Protective Order may be executed in one or more counterparts,

3 each of which shall be deemed to be an original, but all of which together shall 4 constitute one and the same instrument. Facsimile signatures shall be binding upon 5 the Parties hereto and may be submitted and considered as originals. 6 7 8 9 10 11 12 13 14 DATED: August 27, 2009 15 16 17 18 19 20 21 22 23 24 25 26 27 28
STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD Ddad1/orders.civil/joshi0095.protectord

SO STIPULATED.

Dated: August 27, 2009

WILLENKEN WILSON LOH & LIEB, LLP s/Eileen M. Ahern Eileen M. Ahern Attorneys for Defendant Starbucks Corporation BUCHE & ASSOCIATES, P.C. s/John K. Buche John K. Buche Attorneys for Plaintiffs Rakesh Joshi and Pranika Joshi ORDER

IT IS SO ORDERED. Dated: August 27, 2009.
______________________________________ DALE A. DROZD UNITED STATES MAGISTRATE JUDGE

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STIPULATED PROTECTIVE ORDER JOSHI V. STARBUCKS, CASE NO. 2:09-CV-00095-FCD-DAD

Acknowledgment and Agreement To Be Bound I hereby acknowledge that I may receive information designated as "Confidential" from counsel to a party to this action. I hereby certify my understanding that such information will be provided to me pursuant to the terms and restrictions of the above Stipulated Protective Order that has been entered by the Court; that I have been given a copy of, and have read and understand, such Stipulated Protective Order; that I agree to be bound by the terms thereof; and that I irrevocably submit to the personal jurisdiction of the Court in connection with any proceeding to enforce the Stipulated Protective Order that may involve me. ACKNOWLEDGED AND AGREED: Name: _________________________________ Address: _________________________________ Employer: _________________________________ Title: _________________________________ Dated: _________________________________

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