Catanese et al v. Unilever

Filing 45

STIPULATION AND ORDER GOVERNING TREATMENT OF CONFIDENTIAL DISCOVERY re 44 Stipulation filed by Unilever. Signed by Judge Phyllis J. Hamilton on 8/5/11. (nah, COURT STAFF) (Filed on 8/5/2011)

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JENNIFER SARNELLI (CA SBN 242510)
[e-mail]
GARDY & NOTIS, LLP
560 Sylvan Avenue
Englewood Cliffs, New Jersey 07632
Telephone: [phone]
Facsimile: 201.567.7337
Attorneys for Plaintiffs Ross Corriette
and James Waldron
WILLIAM L. STERN (CA SBN 96105)
[e-mail]
MORRISON & FOERSTER, LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522
Attorneys for Defendant
UNILEVER d/b/a BREYERS

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ROSS CORRIETTE and JAMES WALDRON,
individually and on behalf of all others similarly
situated,
Plaintiffs,

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v.

Case No.

11-CV-01811-PJH

CLASS ACTION
STIPULATION AND [PROPOSED]
ORDER GOVERNING TREATMENT
OF CONFIDENTIAL DISCOVERY

UNILEVER d/b/a BREYERS,
Defendant.

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STIPULATION AND [PROPOSED] ORDER RE. CONFIDENTIAL DISCOVERY
CASE NO. 11-CV-01811-PJH
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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 would 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 extends only to the

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information or items that are entitled under the applicable legal principles to treatment as

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confidential. The parties further acknowledge, as set forth in section 10 below, that this stipulated

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protective order creates no entitlement to file confidential information under seal; Civil Local

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Rule 79-5 sets forth the procedures that must be followed and reflects the standards that will be

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applied when a party seeks permission from the court to file material under seal.

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2.

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DEFINITIONS
1.

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

consultants, retained experts, and outside counsel (and their support staff).
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Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner generated, stored, or maintained (including, among other things, testimony,

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transcripts, or tangible things) that are produced or generated in disclosures or responses to

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discovery in this matter.

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3.

“CONFIDENTIAL” Information or Items: information (regardless of how

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

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developed under Fed. R. Civ. P. 26(c).

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4.

“HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY” Information or

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Items: extremely sensitive “Confidential Information or Items” whose disclosure to another Party

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or nonparty would create a substantial risk of serious injury that could not be avoided by less

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restrictive means.

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5.

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

Producing Party (as defined below).
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6.

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

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Material in this action, including all of its officers, directors, employees, consultants, retained

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experts, and outside counsel (and their support staff).

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7.

Designating Party: a Party or non-party that designates information or items that it

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produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL-ATTORNEYS’ EYES ONLY.”

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY.”

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

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Outside Counsel: attorneys who are not employees of a Party but who are retained

to represent or advise a Party in this action.

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10.

House Counsel: attorneys who are employees of a Party.

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Counsel (without qualifier): Outside Counsel and House Counsel (as well as their

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support staffs).

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12.

Expert: a person who has been retained by a Party or its counsel to serve as a

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testifying or non-testifying expert or consultant in this action. This definition includes a

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professional jury or trial consultant retained in connection with this litigation.

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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; organizing,

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storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.

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3.

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

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(as defined above), but also any information copied or extracted therefrom, as well as all copies,

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excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by

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Parties or Counsel whether in court or in other settings that might reveal Protected Material.

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4.

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DURATION
Even after the termination 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.
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5.

DESIGNATING PROTECTED MATERIAL
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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, to the

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extent feasible, take care to limit any such designation to specific material that qualifies under the

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appropriate standards. Notwithstanding the above, a Designating Party may designate a

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document in its entirety as Protected Material even though only portions of the document may

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qualify. 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 at all, or do not qualify for the level of protection

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initially asserted, that Designating Party must, within a reasonable time, notify all other Parties

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that it is withdrawing the mistaken designation. The designation by any Producing Party of

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material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY”

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shall constitute a representation that such material has been reviewed by an attorney for the

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Producing Party and that there is a valid basis for such designation.

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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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material that qualifies for protection under this Order must to the extent possible be clearly so

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designated before the material is disclosed or produced. Designation in conformity with this

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Order requires:

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i.

for information in documentary form (apart from transcripts of depositions

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or other pretrial or trial proceedings), that the Producing Party affix the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY” on each

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page that contains protected material.

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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 “HIGHLY CONFIDENTIAL-

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents qualify for protection
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under this Order, then, before producing copies of the specified documents, the Producing Party

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must affix to the copies the appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL-ATTORNEYS’ EYES ONLY”) on each page that contains Protected Material.

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ii.

for testimony given in deposition or in other pretrial or trial proceedings,

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each Party or non-Party offering or sponsoring the testimony shall have up to 14 days after receipt

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of the transcript to identify the specific portions of the testimony as to which protection is sought

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and to specify the level of protection being asserted (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL-ATTORNEYS’ EYES ONLY”). Until the expiration of the 14 days after

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receipt of the transcript or upon the designation or notice that no designation will be made,

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whichever comes first, the testimony shall be maintained as “HIGHLY CONFIDENTIAL-

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ATTORNEYS’ EYES ONLY,” subject to the exceptions in section 7(3). Only those portions of

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the testimony that are appropriately designated for protection within the 14 days shall be covered

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by the provisions of this Stipulated Protective Order.

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Transcript pages containing Protected Material must be separately bound by the court

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reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” if instructed by the Party or non-

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Party offering or sponsoring the witness or presenting the testimony.

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iii.

for information produced in some form other than documentary, and for

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any 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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or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” If only portions of the

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information or item warrant protection, the Producing Party, to the extent practicable, shall

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identify the protected portions, specifying whether they qualify as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY.”

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3.

Inadvertent Failures to Designate. An inadvertent failure to designate qualified

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information or items as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS’

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EYES ONLY” does not, standing alone, waive the Designating Party’s right to secure protection

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under this Order for such material. If material is appropriately designated as “CONFIDENTIAL”
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or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY” after the material was initially

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produced, the Receiving Party, on timely notification of the designation, must assure that the

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material is treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
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Meet and Confer. The parties shall meet and confer in good faith to resolve any

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challenges to a confidentiality designation. In conferring, the challenging Party must explain the

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

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Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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designation. The challenging Party may proceed to the next stage of the challenge process only if

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it has engaged in this meet and confer process first.

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2.

Judicial Intervention. A Party that elects to press a challenge to a confidentiality

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designation after considering the justification offered by the Designating Party may file and serve

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a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable).

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Until the court rules on the challenge, all parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing Party’s designation.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
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Basic Principles. A Receiving Party may use Protected Material that is disclosed

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or 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

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

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has been terminated, a Receiving Party must comply with the provisions of section 11, below

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(FINAL 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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2.

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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disclose any information or item designated CONFIDENTIAL only to:

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i.

the Parties to this action;

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ii.

the Receiving Party’s Outside Counsel of record in this action, including

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employees of said Counsel to whom it is reasonably necessary to disclose the information for this

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litigation;

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iii.

the officers, directors, and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation;

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iv.

Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the “Agreement To Be

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Bound by Protective Order” (Exhibit A);

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v.

the Court and its personnel;

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vi.

stenographers, their staffs, and Professional Vendors to whom disclosure is

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reasonably necessary for this litigation;

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vii.

non-Party witnesses in the action to whom disclosure is reasonably

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necessary after having been advised of the existence and terms of this Order and having signed

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the “Agreement To Be Bound By Protective Order” (Exhibit A);

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viii.

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source of the information

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ix.
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the author, addressee or prior recipient of the document or the original

the Producing Party.
Disclosure of “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL-ATTORNEYS’ EYES ONLY” only to:

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i.

the Receiving Party’s Outside Counsel of record in this action, including

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employees of said Counsel to whom it is reasonably necessary to disclose the information for this

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litigation;
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ii.

House Counsel of a Receiving Party (1) who has no involvement in

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competitive decision-making involving the subject matter of this action, and (2) to whom

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disclosure is reasonably necessary for this litigation;

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iii.

Experts (as defined in this Order) to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Agreement To Be Bound by Protective

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Order” (Exhibit A);

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iv.

the Court and its personnel;

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v.

stenographers, their staffs, and Professional Vendors to whom disclosure is

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reasonably necessary for this litigation;

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vi.

non-Party witnesses in the action to whom disclosure is reasonably

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necessary after having been advised of the existence and terms of this Order and having signed

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the “Agreement To Be Bound By Protective Order” (Exhibit A); and

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vii.

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source of the information;

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viii.

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8.

the author, addressee, or prior recipient of the document or the original

the Producing Party.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION.
If a Receiving Party is served with a subpoena or an order issued in other litigation that

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would compel disclosure of any information or items designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” the

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Receiving Party must so notify the Designating Party, in writing (by fax or email, if possible) no

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more than seven court days after receiving the subpoena or order. Such notification must include

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a copy of the subpoena or court order.

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The Receiving Party also must inform in writing the Party who caused the subpoena or

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order to issue in the other litigation that some or all the material covered by the subpoena or order

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is the subject of this Protective Order. In addition, the Receiving Party must deliver a copy of this

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Stipulated Protective Order promptly to the Party in the other action that caused the subpoena or

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order to issue.
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The purpose of imposing these duties is to alert the interested parties to the existence of

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this Protective Order and to afford the Designating Party in this case an opportunity to try to

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protect its confidentiality interests in the court from which the subpoena or order issued. The

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Designating Party shall bear the burdens and the expenses of seeking protection in that court of its

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confidential material - and nothing in these provisions should be construed as authorizing or

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

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9.

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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 immediately retrieve all 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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10.

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FILING PROTECTED MATERIAL
Without written permission from the Designating Party or a court order secured after

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appropriate notice to all interested persons, a Party may not file in the public record in this action

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any Protected Material. A Party that seeks to file under seal any Protected Material must comply

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with Civil Local Rule 79-5.

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Where filings are made under seal, the Party filing the document shall lodge with the
Court’s chambers an unredacted version of the filing.

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Any Protected Material used openly in court hearings or trial will not be kept confidential

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absent order of the Court, secured in advance of the use of such material.

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11.

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FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60)

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days after the final termination of this action, each Receiving Party must undertake all reasonable

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efforts to destroy all Protected Material. The “final termination” shall occur when the time for

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appeal or review of a final judgment expires or, if any appeal is filed and not dismissed, five (5)
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business days after the final judgment is upheld on appeal in all material respects and is no longer

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subject to review upon appeal or by writ of certiorari. As used in this subdivision, “all Protected

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Material” includes all copies, abstracts, compilations, summaries or any other form of

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reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

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pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work

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product, even if such materials contain Protected Material. Any such archival copies that contain

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or constitute Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION), above.

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MISCELLANEOUS
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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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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,

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no Party waives any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: August 3, 2011

MARK C. GARDY
JAMES S. NOTIS
KELLY A. NOTO
JENNIFER SARNELLI
GARDY & NOTIS, LLP

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By: /s/ Jennifer Sarnelli
Jennifer Sarnelli
Attorneys for Plaintiffs Ross Corriette
and James Waldron

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STIPULATION AND [PROPOSED] ORDER RE. CONFIDENTIAL DISCOVERY
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Dated: August 3, 2011
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WILLIAM L. STERN
MORRISON & FOERSTER LLP

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By: /s/ William L. Stern
WILLIAM L. STERN

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Attorneys for Defendant Unilever d/b/a
Breyers

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ECF ATTESTATION

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I, William L. Stern, am the ECF User whose ID and Password are being used to file this:
STIPULATION AND [PROPOSED] ORDER CONTINUING INITIAL CASE
MANAGEMENT CONFERENCE.
In compliance with General Order 45, X.B., I hereby attest that William L. Stern and
Jennifer Sarnelli have concurred in this filing.
Dated: August 3, 2011

MORRISON & FOERSTER LLP

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By: /s/ William L. Stern
William L. Stern

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[PROPOSED] ORDER
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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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ER

H

8

R NIA

n

Hamilto

LI

RT

hyllis J.
Judge P

ERED

A

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UNIT
ED

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O ORD
IT IS S

NO

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RT
U
O

S DISTRICT
_______________________________________ __
TE
C
TA
Honorable Phyllis J. Hamilton
United States District Judge

FO

8/5/11
DATED: ______________

S

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F
D IS T IC T O
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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 ______ in the case of Corriette v. Unilever d/b/a Breyers,

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Case No. 11-CV-01811-PJH (N. D. Cal.). I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order and I understand and acknowledge that failure to so

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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 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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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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Signature: _________________________________

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