In Re Clorox Consumer Litigation

Filing 63

Order by Hon. Samuel Conti granting (61) Stipulation in case 3:12-cv-00280-SC.Associated Cases: 3:12-cv-00280-SC, 3:12-cv-00356-SC, 3:12-cv-00649-SC, 3:12-cv-00764-SC, 3:12-cv-01051-SC(sclc1, COURT STAFF) (Filed on 2/4/2013)

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ROBBINS GELLER RUDMAN
& DOWD LLP
SHAWN A. WILLIAMS (213113)
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: [phone]
415/288-4534 (fax)
[e-mail]
Attorneys for Plaintiffs
JENNER & BLOCK LLP
Kenneth K. Lee (Cal. Bar No. 264296)
[e-mail]
Kelly M. Morrison (Cal. Bar No. 255513)
[e-mail]
633 West 5th Street, Suite 3600
Los Angeles, CA 90071-2054
Phone:
[phone]
Facsimile: [phone]
Attorneys for Defendant
The Clorox Pet Products Company,
improperly sued as The Clorox Company
[Additional counsel appears on signature page.]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In re CLOROX CONSUMER LITIGATION
_____________________________________

Master File No. 12-cv-00280-SC
STIPULATED PROTECTIVE ORDER

This Document Relates To:

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ALL ACTIONS

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PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Among other things, the parties have requested or may request the production of information that

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they in good faith believe to contain confidential, proprietary, or trade secret business

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information, including (a) proprietary marketing materials, (b) confidential sales and financial

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information, (c) information protected by confidentiality agreements with third-parties, and (d)

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other nonpublic, sensitive information.

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Accordingly, the parties hereby stipulate to and petition the court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are the producing

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party or non-party believes are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information under seal; Civil

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Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and the

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standards that will be applied when a party seeks permission from the court to file material under

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seal.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule

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of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff).
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Designating Party: a Party or Non-Party that designates information or items that

it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5

Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.6

Expert: a person with specialized knowledge or experience in a matter pertinent to

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the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a

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consultant in this action.

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2.7

Counsel does not include Outside Counsel of Record or any other outside counsel.

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House Counsel: attorneys who are employees of a party to this action. House

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Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.

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2.9

Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this action

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on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

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2.10

consultants, retained experts, and Outside Counsel of Record (and their support staffs).

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Party: any party to this action, including all of its officers, directors, employees,

2.11

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.

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2.12

Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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2.13

Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”

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2.14

Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2)

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all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

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a result of publication not involving a violation of this Order, including becoming part of the

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public record through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who

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obtained the information lawfully and under no obligation of confidentiality to the Designating

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Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must in good

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faith take care to limit any such designation to specific material that qualifies under the

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appropriate standards. The Designating Party must designate for protection only those parts of

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material, documents, items, or oral or written communications that qualify – so that other portions

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of the material, documents, items, or communications for which protection is not warranted are

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not swept unjustifiably within the ambit of this Order.

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If it comes to a Designating Party’s attention that information or items that it designated

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for protection do not qualify for protection, that Designating Party must promptly notify all other

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Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the Disclosure or Discovery Material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by making appropriate markings in the

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margins).

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A Party or Non-Party that makes original documents or materials available for inspection

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need not designate them for protection until after the inspecting Party has indicated which

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material it would like copied and produced. During the inspection and before the designation, all

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of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the

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inspecting Party has identified the documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or

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portions of the material on a page qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that

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the Designating Party identify on the record all protected testimony at the deposition, hearing, or

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other proceeding, or within 20 days of receipt by the parties of the transcript of such testimony.

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(c) for information produced in some form other than documentary and for any
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other tangible items, that the Producing Party affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend “CONFIDENTIAL.”

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If only a portion or portions of the information or item warrant protection, the Producing Party, to

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the extent practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

confidentiality at any time.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin

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the process by conferring directly (in voice to voice dialogue; other forms of communication are

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not sufficient) within 10 days of the date of service of notice. In conferring, the Challenging

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Party must explain the basis for its belief that the confidentiality designation was not proper and

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the Designating Party must, upon good faith consideration of the Challenging Party’s basis for

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the challenge, explain the basis for the chosen designation. A Challenging Party may proceed to

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the next stage of the challenge process only if it has engaged in this meet and confer process first

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or establishes that the Designating Party is unwilling to participate in the meet and confer process

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in a timely manner.

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6.3

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Judicial Intervention. If the Parties cannot resolve a challenge without court

intervention, the Challenging Party shall file and serve a motion to challenge confidentiality

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under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if

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applicable) within 21 days of the initial notice of challenge or within 14 days of the parties

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agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. In its

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response, the Designating Party shall set forth why the designated documents are confidential and

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will have the burden of persuasion. Each such motion must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer requirements

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imposed in the preceding paragraph.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed or

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produced by another Party or by a Non-Party in connection with this case only for prosecuting,

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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to

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the categories of persons and under the conditions described in this Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and

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in a secure manner that ensures that access is limited to the persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

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by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and Agreement to be

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Bound” that is attached hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation;
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);
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(d) the court and its employees, and Special Masters or Mediators engaged for this
action;

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(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional Vendors to

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whom disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(g) during their depositions or at trial, witnesses in the action to whom disclosure

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is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material

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must be separately bound by the court reporter and may not be disclosed to anyone except as

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permitted under this Stipulated Protective Order; and

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(h) the author or recipient of a document containing the information or a custodian

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or other person who otherwise possessed or knew the information.

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8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that compels

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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party

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must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to issue

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in the other litigation that some or all of the material covered by the subpoena or order is subject

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to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;

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and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party’s permission. The Designating Party

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shall bear the burden and expense of seeking protection in that court of its confidential material –

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and nothing in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this action to disobey a lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION

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(a)

The terms of this Order are applicable to information produced by a Non-

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Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non-

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Parties in connection with this litigation is protected by the remedies and relief provided by this

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Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential information, then the

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Party shall:

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(1)

promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement with a Non-

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Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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(3)

make the information requested available for inspection by the

Non-Party.

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(c)

If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request. If the Non-

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Party timely seeks a protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the court.1 Absent a court order to the contrary, the Non-Party shall bear the

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burden and expense of seeking protection in this court of its Protected Material.

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10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

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communication or information covered by the attorney-client privilege or work product

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protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a
Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.

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12.

MISCELLANOUS
12.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the court in the future.
12.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

Order, no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
Party waives any right to object on any ground to use in evidence of any of the material covered
by this Protective Order.
12.3

Filing Protected Material. A party may file in the public record in this action any

Protected Material with written permission from the Designating Party or a court order received
after appropriate notice to all interested persons. If no written permission or court order is
received, a Party may not file in the public record in this action any Protected Material. A Party
that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5 and
General Order 62. Protected Material may only be filed under seal pursuant to a court order
authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule
79-5 and General Order 62, a sealing order will issue only upon a request establishing that the
Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to
protection under the law. If a Receiving Party's request to file Protected Material under seal
pursuant to Civil Local Rule 79-5(d) and General Order 62 is denied by the court, then the
Receiving Party may file the information in the public record pursuant to Civil Local Rule 79-5(e)
unless otherwise instructed by the court.
12.4

Non-admission: The designation of materials as “CONFIDENTIAL” is not

admissible before any trier of fact and in no way implies that the party so designating the
materials believes such materials are of any significance to this litigation. Neither this Order nor
any stipulation therefore, nor any disclosure or use of information or documents, in whatever
form, pursuant to this Order, shall be deemed an admission, waiver, or agreement by any party
that any information or documents designated as “CONFIDENTIAL” hereunder is or is not a
trade secret or confidential information for purposes of determining the merits of any claims

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either party may have against one another or a third party. Neither this Order nor any stipulation

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therefore shall be deemed to expand the scope of discovery in this action beyond the limits

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otherwise prescribed by law, nor to enlarge the scope of discovery to matters unrelated to this

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lawsuit. Furthermore, this Order shall not control the use of any evidence during the trial or any

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hearing of this case. Nor shall anything herein preclude any party or non-party from seeking the

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assistance of the Court in maintaining the confidential nature of any evidence that is presented at

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hearing or trial.

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13.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, and

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upon written request by the Producing Party, each Receiving Party must return all Protected

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Material to the Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and any other format

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reproducing or capturing any of the Protected Material. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification to the Producing

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Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline or

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the written request by the Producing Party, whichever occurs later, that affirms that the Receiving

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Party has not retained any copies, abstracts, compilations, summaries or any other format

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reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and

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hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if such materials

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contain Protected Material. Any such archival copies that contain or constitute Protected Material

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remain subject to this Protective Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: January 16, 2013

/s/ Greg Asciolla__________
ROBBINS GELLER RUDMAN
& DOWD LLP
PAUL J. GELLER
STUART A. DAVIDSON
MARK J. DEARMAN
KATHLEEN L. BARBER
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: [phone]
561/750-3364 (fax)
ROBBINS GELLER RUDMAN
& DOWD LLP
SHAWN A. WILLIAMS (213113)
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: [phone]
415/288-4534 (fax)
[e-mail]
ROBBINS GELLER RUDMAN
& DOWD LLP
ROBERT M. ROTHMAN
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: [phone]
631/367-1173 (fax)

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LABATON SUCHAROW LLP
HOLLIS SALZMAN
GREGORY ASCIOLLA
140 Broadway
New York, NY 10005
Telephone: [phone]
212/818-0477 (fax)
[e-mail]
[e-mail]
SHEPHERD, FINKELMAN, MILLER
& SHAH, LLP
JAMES C. SHAH
475 White Horse Pike

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Collingswood, NJ 08107-1909
Telephone: [phone]
856/858-7012 (fax)
[e-mail]
[e-mail]

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HARKE CLASBY & BUSHMAN LLP
LANCE A. HARKE
SARAH CLASBY ENGEL
HOWARD M. BUSHMAN
9699 NE Second Avenue
Miami Shores, FL 33138
Telephone: [phone]
305/536-8229 (fax)

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FARUQI & FARUQI, LLP
DAVID E. BOWER
VAHN ALEXANDER
CHRISTOPHER B. HAYES
10866 Wilshire Boulevard, Suite 1470
Los Angeles, CA 90024
Telephone: [phone]
424/257-2885 (fax)
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Plaintiffs

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DATED: January 16, 2013

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S

DERED

O OR
IT IS S

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A

N

F
D IS T IC T O
R

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ti
uel Con

LI

ER

H

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RT

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NO

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am
Judge S

R NIA

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UNIT
ED

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S DISTRICT
TE
C
TA

RT
U
O

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/s/ Kenneth K. Lee________

FO

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February 14, 2013

C

JENNER & BLOCK LLP
Kenneth K. Lee (Cal. Bar No. 264296)
[e-mail]
Kelly M. Morrison (Cal. Bar No. 255513)
[e-mail]
633 West 5th Street, Suite 3600
Los Angeles, CA 90071-2054
Phone: [phone]
Facsimile:
[phone]
JENNER & BLOCK LLP
Dean N. Panos (admitted pro hac vice)
[e-mail]
353 N. Clark Street
Chicago, IL 60654-3456
Phone: [phone]
Facsimile:
[phone]
Attorneys for Defendant

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

_____________________________

[print

or

type

full

name],

of

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_________________ [print or type full address], declare under penalty of perjury that I have read

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in its entirety and understand the Stipulated Protective Order that was issued by the United States

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District Court for the Northern District of California on [date] in the case of In re Clorox

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Consumer Litigation, Master File No. 3:12-cv-00280-SC. I agree to comply with and to be bound

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by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure

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to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly

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promise that I will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in strict compliance with the provisions

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of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for

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the Northern District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________
[printed name]
Signature: __________________________________
[signature]

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