American Licorice Company v. Total Sweeteners, Inc. et al

Filing 79

STIPULATION AND ORDER re 78 STIPULATION WITH PROPOSED ORDER [Proposed] Stipulated Protective Order filed by American Licorice Company. Signed by Judge Edward M. Chen on 1/28/14. (bpf, COURT STAFF) (Filed on 1/28/2014)

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Kent Jonas, State Bar No. 55001
[e-mail]
Lauren M. Michals, State Bar No. 184473
[e-mail]
Gina M. Fornario, State Bar No. 246619
[e-mail]
Shady E. Joulani, State Bar No. 287910
[e-mail]
NIXON PEABODY LLP
One Embarcadero Center, 18th Floor
San Francisco, California 94111-3600
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff
AMERICAN LICORICE COMPANY

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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vs.

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Judge: Hon. Edward M. Chen
Courtroom: 5

TOTAL SWEETENERS, INC. dba BATORY
FOODS, INC. and DOES 1 through 10
Inclusive,

Complaint Filed: April 26, 2013

Defendant.
TOTAL SWEETENERS, INC., individually
and doing business as BATORY FOODS,

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

Plaintiff,

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Case No. 3:13-cv-01929-EMC

AMERICAN LICORICE COMPANY,
Plaintiff,

Third-party Plaintiff,
vs.
SAVANNAH SUGAR REFINERY, a
subsidiary of IMPERIAL SUGAR COMPANY;
IMPERIAL SUGAR COMPANY; IMPERIAL
DISTRIBUTING, INC.; DOMINO FOODS,
INC.; and ROES 1 through 10, inclusive,
Third-party Defendants.

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[Proposed] Stipulated Protective Order
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1.

PURPOSES AND LIMITATIONS

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

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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

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

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all disclosures or responses to discovery and that the protection it affords from public disclosure

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and use extends only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3,

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below, that this Stipulated Protective Order does not entitle them to file confidential information

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under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be

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followed and the standards that will be applied when a party seeks permission from the court to

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file material under 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.
2.2

“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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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

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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

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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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House Counsel: House Counsel refers to attorneys who are employees of a party to

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this action, or its parent entities, or its affiliates. House Counsel also refers to attorneys, whether

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or not employees of a party to this action, who have been engaged to represent a party in respect to

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any aspect of this dispute. House Counsel does not include Outside Counsel of Record.
2.8

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

entity not named as a Party to this action.
2.9

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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.
2.10

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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,

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

Material in this action.
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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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Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

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

(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 a

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

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

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

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the information lawfully and under no obligation of confidentiality to the Designating Party. Any

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

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4.

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

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

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

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

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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.

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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 take care to

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limit any such designation to specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of material, documents, items, or

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

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items, or communications for which protection is not warranted are not swept unjustifiably within

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the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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

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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

(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 material is disclosed or produced.

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Designation in conformity with this Order requires:
(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 Party

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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 must

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

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A Party or Non-Party that makes original documents or materials available for inspection need not

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designate them for protection until after the inspecting Party has indicated which material it would

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

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made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must determine which

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documents, or portions thereof, qualify for protection under this Order. Then, before producing the

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specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page

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that contains Protected Material. If only a portion or portions of the material on a page qualifies

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for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by

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making appropriate markings in the margins).

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

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Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony.

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Any party may also designate information disclosed at or during such depositions as

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“CONFIDENTIAL” by notifying all of the parties in writing, within twenty (20) days of receipt of

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the transcript, of the specific pages and lines of the transcript that should be treated as

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“CONFIDENTIAL” thereafter. Each party shall attach a copy of such written notice or notices to

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the face of the transcript and each copy in that party’s possession, custody or control. All

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deposition transcripts shall be treated as “CONFIDENTIAL” for a period of twenty (20) days after

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the receipt of the transcript.
(c) for information produced in some form other than documentary and for any other

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tangible items, that the Producing Party affix in a prominent place on the exterior of the container

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or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a

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

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extent practicable, shall identify the protected portion(s).
5.3

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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 treated

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in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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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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specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

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good faith and must begin the process by conferring directly (in voice to voice dialogue; other

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forms of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no change in designation is offered, to

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explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of

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the challenge process only if it has engaged in this meet and confer process first or establishes that

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the Designating Party is unwilling to participate in the meet and confer process in a timely

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manner.

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6.3

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

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intervention, the Designating Party shall file and serve a motion to retain confidentiality under

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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. Each

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such motion must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed in the preceding paragraph. Failure by

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the Designating Party to make such a motion including the required declaration within 21 days (or

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14 days, if applicable) shall automatically waive the confidentiality designation for each

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challenged designation. In addition, the Challenging Party may file a motion challenging a

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confidentiality designation at any time if there is good cause for doing so, including a challenge to

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the designation of a deposition transcript or any portions thereof. Any motion brought pursuant to

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this provision must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
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 in
a secure manner that ensures that access is limited to the persons authorized under this Order.
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 and who have signed the

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

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(e) court reporters and their staff, professional jury or trial consultants, mock jurors,

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material must be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian or

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other person who otherwise possessed or knew the information.

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8.

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LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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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:
(a) promptly notify in writing the Designating Party. Such notification shall include a

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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 in

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

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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

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Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena

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or court order shall not produce any information designated in this action as “CONFIDENTIAL”

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before a determination by the court from which the subpoena or order issued, unless the Party has

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obtained the Designating Party’s permission. The Designating Party shall bear the burden and

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expense of seeking protection in that court of its confidential material – and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive from another court.

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9.

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

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LITIGATION

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(a) The terms of this Order are applicable to information produced by a Non-Party in

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

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connection with this litigation is protected by the remedies and relief provided by this Order.

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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 produce a

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

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

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(1) promptly notify in writing the Requesting Party and the Non-Party that some or
all of the information requested is subject to a confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order

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in this litigation, the relevant discovery request(s), and a reasonably specific description of the

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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 within 14

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

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

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

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

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by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and

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

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10.

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 Protected

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Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the

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

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

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11.

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MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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 order

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

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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 protection,

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the parties may incorporate their agreement in the stipulated protective order submitted to the

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court.

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12.

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MISCELLANEOUS
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.

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12.2

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

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Order no Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the material covered

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by this Protective Order.
12.3

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Filing Protected Material. Without written permission from the Designating Party

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or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected

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Material may only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a

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sealing order will issue only upon a request establishing that the Protected Material at issue is

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privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a

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Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-

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5(d) and General Order 62 is denied by the court, then the Receiving Party may file the

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information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed

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by the court.

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12.4

By executing this Stipulation and Order, the signatories below in no way waive any

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arguments they may have that the Northern District of California is not the proper venue for this

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action or any part of it.

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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, each

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Receiving Party must return all Protected Material to the Producing Party or destroy such material.

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As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected Material. Whether

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the Protected Material is returned or destroyed, the Receiving Party must submit a written

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certification to the Producing Party (and, if not the same person or entity, to the Designating Party)

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by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected

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Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained

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any copies, abstracts, compilations, summaries or any other format reproducing or capturing any

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of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival

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copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this Protective Order

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as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
I attest that concurrence in the filing of this document has been obtained from each of the
other signatories, which shall serve in lieu of their signatures on the document.

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Dated: January 22, 2014

NIXON PEABODY LLP

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By: /s/ Gina M. Fornario
Kent Jonas
Lauren M. Michals
Gina M. Fornario
Shady E. Joulani
Attorneys for Plaintiff
AMERICAN LICORICE COMPANY

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Dated: January 22, 2014

GORDON & REESE LLP

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By: /s/ Mordecai D. Boone
Mordecai D. Boone, Esq.
Counsel for Defendants and Third-party
Plaintiff, Total Sweeteners, Inc. and Batory
Foods, Inc.

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Dated: January 22, 2014

BINGHAM McCUTCHEN LLP

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By: /s/ Colin C. West
Colin C. West
Rick Rothman
Attorneys for Third-party Defendant
DOMINO FOODS, INC.

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Dated: January 22, 2014

MCGRATH NORTH MULIN & KRATZ, PC
LLP

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By: /s/ Patrick E. Brookhouser, Jr.
Patrick E. Brookhouser, Jr.
Counsel for Third-party Defendants
Imperial Sugar Company, Imperial
Distributing, Inc., and Savannah Sugar
Refinery

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DATED: ______________

NO

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RT

ER

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n

M. Che

A

H

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dward
Judge E

R NIA

AS M

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FO

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_____________________________________
RED
Judge:S Hon. ORDE M. Chen
SO Edward D
IT I
United States District/Magistrate Judge
ODIFIE

LI

1/28/14

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S DISTRICT
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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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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 in its entirety and

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understand the Stipulated Protective Order that was issued by the United States District Court for

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the Northern District of California on January ___, 2014, in the case of American Licorice

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Company v. Total Sweeteners, Case No. 3:13-cv-01929-EMC. I agree to comply with and to be

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

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

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

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

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provisions of this Order.

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

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

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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 number]

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

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related to enforcement of this Stipulated Protective Order.

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Date: _____________

By:__________________________________________

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City and State where sworn and signed: _____________________________________

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[Proposed] Stipulated Protective Order
Case Number 3:13-cv-01929-EMC

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