Bolerjack v. Pepperidge Farm, Inc.

Filing 30

PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 3/21/13. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02918-PAB-BNB
SONYA BOLERJACK, as an individual, and on behalf of all others similarly situated,
Plaintiff,
v.
PEPPERIDGE FARM, INC., a Connecticut corporation,
Defendant.

[PROPOSED] STIPULATED PROTECTIVE ORDER

Pursuant to the stipulation of the parties, IT IS ORDERED:
IT IS HEREBY STIPULATED AND AGREED by and between the parties hereto, by
and through their undersigned counsel, that the following provisions and conditions shall govern
the disclosure and use of confidential information, both in documentary and any other tangible or
intangible form, subject to protection under Federal Rule of Civil Procedure 26(c)(1)(G) or any
other applicable law.
A protective order is needed in this case, which arise out of Pepperidge Farm,
Incorporated’s (“PFI”) advertising and labeling of its Cheddar Goldfish product as “Natural No
Preservatives”. Plaintiff alleges that PFI’s Cheddar Goldfish product contains so-called
“Genetically Modified Organisms” (or “GMOs”) in the form of soy oil and that PFI’s failure to
disclose the fact the Cheddar Goldfish contain GMO soy while advertising the product as
"Natural" is misleading and unfair. A protective order is needed to protect the trade secret,

proprietary, or other confidential information of the parties. Areas of discovery might include,
among other things, the following1:
a) PFI’s procurement of ingredients and manufacturing of Cheddar Goldfish,
including its development, formulation, recipe, production processes and
techniques, and other trade secret information about PFI’s operations;

b) PFI’s sales of Cheddar Goldfish, including its policies and procedures
regarding pricing, and its margin and profit information;

c) PFI's marketing plans and other documents relating to its strategic and
competitive business plans;

d) PFI's confidential communications with others including agents, industry
groups, and trade associations which reveal the business strategy of PFI and
its parent Campbells;

e) PFI’s financial statements and related financial information related to its sales
of Cheddar Goldfish product in Colorado; and

f) PFI’s contractual and/or financial relationships with others in its supply chain,
including its specific methods for distributing and selling its product through
various sales channels.
Discovery may also be obtained from several non-parties, including suppliers and former
employees of PFI. As such, the parties believe that a protective order, rather than a private
agreement between the two of them, is needed to enable the parties to preserve the
confidentiality of their information, including the type of information referenced above.
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PFI does not necessarily agree that Plaintiff is entitled to discovery of documents from each of these
categories.

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1.

As used in this Protective Order, these terms have the following meanings:
a.
b.

“Confidential” documents are documents designated in accordance with
Paragraph 2;

c.

“Confidential — Attorneys’ Eyes Only” documents are the subset of
Confidential documents designated in accordance with Paragraph 5;

d.

“Documents” are all materials within the scope of Federal Rule of Civil
Procedure 34(a);

e.
2.

“Attorneys” means outside counsel of record and house counsel (i.e.,
attorneys who are employees of a party to this action);

“Written Assurance” means an executed document in the form attached as
Exhibit A.

A party may designate as “Confidential” any document, including interrogatory

responses, other discovery responses or transcripts, that it in good faith contends to constitute or
contain trade secret or other confidential information.
3.

All Confidential documents, along with the information contained in the

documents, shall be used solely for the purpose of this action, and no person receiving such
documents shall, directly or indirectly, transfer, disclose, or communicate in any way the
contents of the documents to any person other than those specified in Paragraph 4. Prohibited
purposes include, but are not limited to, use for competitive purposes or use in any other
litigation.
4.

Access to any Confidential document shall be limited to:
a.

The Court and its officers;

b.

Attorneys and their paralegals, legal assistants, and stenographic and
clerical employees;

c.

Persons shown on the face of the document to have authored or received
it;

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d.
e.

The parties;

f.

Outside independent persons (i.e., persons not currently or formerly
employed by, consulting with, or otherwise associated with any party)
who are retained by a party or its attorneys to furnish technical or expert
services, or to provide assistance as mock jurors or focus group members
or the like, and/or to give testimony in this action; and

g.

5.

Court reporters retained to transcribe testimony;

During their depositions, former employees of PFI to whom disclosure is
reasonably necessary and who have signed a Written Assurance (Exhibit
A), unless otherwise agreed by the designating party or ordered by the
Court.

The parties shall have the right to further designate Confidential documents or

portions of documents as “Confidential — Attorneys’ Eyes Only.” This designation shall be
applied only to information that a party in good faith believes is highly sensitive such that it
should not be disclosed to the named Plaintiff or to directors, officers or other non-attorney
employees of PFI, thus requiring a higher level of confidential protection than information
designated “Confidential.” Disclosure of such information shall be limited to the persons
designated in Paragraphs 4.a., 4.b., 4.c., 4.d. and 4.f.
6.

A.

Documents produced in paper form may be designated as “Confidential”

or “Confidential—Attorneys’ Eyes Only” by affixing the legend “CONFIDENTIAL” or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” to each page that contains protected
material. Transcripts of depositions and court proceedings may be designated in the manner set
forth in Paragraph 9. Other information, including tangible items and documents produced in
electronic form or on a portable storage device, may be designated Confidential by affixing in a
prominent place on the exterior of the container or storage device in which the item or
information is stored the legend “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’

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EYES ONLY” (but if only a portion of the item or information warrants protection, the
producing party, to the extent practicable, shall identify the protected portion(s).) In the case of
electronically-produced documents or images, such documents may be designated by
electronically stamping “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES
ONLY” on the first page of such document or image
B.

A party (or third party) that makes original documents or materials

available for inspection need not designate them for protection until after the inspecting party has
indicated which material it would like copied and produced. During the inspection and before
the designation, all of the material made available for inspection shall be deemed “Confidential.”
After the inspecting party has identified the documents it wants copied and produced, the
producing party must determine which documents, or portions thereof, qualify for protection
under this Order. Then, before producing the specified documents, the producing party must
affix the “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” legend to
the produced documents or materials in the manner described above. The inspecting party may
not, without the producing party’s consent, make copies or take photos of any documents or
things being made available for inspection.
7.

Third parties producing documents in the course of this action may also designate

documents as “Confidential” or “Confidential — Attorneys’ Eyes Only,” subject to the same
protections and constraints as the parties to the action. A copy of the Protective Order shall be
provided to such third parties upon request.
8.

Each outside independent person as defined in Paragraph 4.f shall, prior to

receiving Confidential information, execute a “Written Assurance” in the form attached as

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Exhibit A. Opposing counsel shall be notified at least 10 days prior to disclosure to any such
person who is known to be an employee or agent of, or consultant to, any competitor of the party
whose designated documents are sought to be disclosed. Such notice shall provide a reasonable
description of the outside independent person to whom disclosure is sought sufficient to permit
objection to be made. If a party objects in writing to such disclosure within 10 days after receipt
of notice, no disclosure shall be made until the party seeking disclosure obtains the prior
approval of the Court or the objecting party.
9.

All depositions or portions of depositions taken in this action that contain trade

secret or other confidential information may be designated “Confidential” or “Confidential -Attorneys’ Eyes Only” and thereby obtain the protections accorded other “Confidential” or
“Confidential — Attorneys’ Eyes Only” documents. Confidentiality designations for
depositions shall be made either on the record or by written notice to the other party within 30
days of receipt of the transcript. Unless otherwise agreed, depositions shall be treated as
“Confidential — Attorneys’ Eyes Only” during the 30-day period following receipt of the
transcript. The deposition of any witness (or any portion of such deposition) that encompasses
Confidential information shall be taken only in the presence of persons who are qualified to have
access to such information.
10.

Any party who inadvertently fails to identify documents as “Confidential” or

“Confidential — Attorneys’ Eyes Only” shall have 15 days from the discovery of its oversight to
correct its failure. Such failure shall be corrected by providing written notice of the error and
substituted copies of the inadvertently produced documents. Any party receiving such

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inadvertently unmarked documents shall make reasonable efforts to retrieve documents
distributed to persons not entitled to receive documents with the corrected designation.
11.

Any party who inadvertently discloses documents that are privileged or otherwise

immune from discovery shall, promptly upon discovery of such inadvertent disclosure, so advise
the receiving party and request that the documents be returned. The receiving party shall return
such inadvertently produced documents, including all copies, within 10 days of receiving such a
written request, and otherwise comply with the duties set forth in Federal Rules of Civil
Procedure 26(b)(5)(B). The party returning such inadvertently produced documents may
thereafter seek re-production of any such documents in accordance with and if permitted by
applicable law.
12.

If a party receiving Confidential documents learns that, by inadvertence or

otherwise, it has disclosed Confidential documents to any person or in any circumstance not
authorized under this Order, the receiving party must immediately (a) notify in writing the
designating party of the unauthorized disclosures, (b) use its best efforts to retrieve all
unauthorized copies of the Confidential documents, (c) inform the person or persons to whom
unauthorized disclosures were made of all the terms of this Order, and (d) request such person or
persons to execute the Written Assurance hereto as Exhibit A.
13.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2. If any document marked as “Confidential” or “Confidential —
Attorneys’ Eyes Only” and produced in this litigation is to be filed as an exhibit to any court
record or pleading, or otherwise placed among the court papers in this litigation, or if
Confidential information in such document is disclosed or discussed in a party’s brief, the party

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filing the material shall submit the document containing such Confidential information under
seal in accordance with D.C.COLO.LCivR 7.2, in a sealed envelope bearing the caption of the
case and the legend, “Filed Under Seal,” subject to Court procedures.
14.

Prior to disclosure at trial of Confidential documents, the parties may seek further

protections against public disclosure from the Court.
15.

Any party may request a change in the designation of any information designated

“Confidential” and/or “Confidential — Attorneys’ Eyes Only.” Any such document shall be
treated as designated until the change is completed. If the requested change in designation is not
agreed to, the party seeking the change may move the Court for appropriate relief (while
complying with Paragraph 13 above concerning the filing of documents under seal), providing
notice to any third party whose designation of produced documents as “Confidential” and/or
“Confidential — Attorneys’ Eyes Only” in the action may be affected. The party asserting that
the material is Confidential shall have the burden of proving that the information in question is
within the scope of protection afforded by Federal Rule of Civil Procedure 26(c).
A party may object to the designation of particular Confidential information by
giving written notice to the party designating the disputed information. The written notice
shall identify the information to which the objection is made. If the parties cannot resolve
the objection within ten (10) business days after the time the notice is received, it shall be
the obligation of the party designating the information as Confidential to file an
appropriate motion requesting that the court determine whether the disputed information
should be subject to the terms of this Protective Order. If such a motion is timely filed, the
disputed information shall be treated as Confidential under the terms of this Protective

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Order until the Court rules on the motion. If the designating party fails to file such a
motion within the prescribed time, the disputed information shall lose its designation as
Confidential and shall not thereafter be treated as Confidential in accordance with this
Protective Order. In connection with a motion filed under this provision, the party
designating the information as Confidential shall bear the burden of establishing that good
cause exists for the disputed information to be treated as Confidential.
16.

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

compels disclosure of any Confidential documents (including Confidential documents produced
by a third party), that party must (a) promptly notify in writing the designating party and provide
a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the
subpoena or order to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order and provide a copy of this Order; and (c)
cooperate with respect to all reasonable procedures sought to be pursued by the designating party
whose Confidential documents may be affected. If the designating party timely seeks a
protective order, the party served with the subpoena or court order shall not produce any
Confidential documents before a determination by the court from which the subpoena or order
issued, unless the designating party has consented to the production. The designating party shall
bear the burden and expense of seeking protection in that court of its confidential material, and
nothing in these provisions should be construed as authorizing or encouraging a receiving party
in this action to disobey a lawful directive from another court.
17.

If a party is served with a valid discovery request in this action to produce a non-

party’s confidential information in its possession, and the party is subject to an agreement with

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the non-party not to produce the non-party’s confidential information, then the party shall (a)
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 the non-party; (b) promptly
provide the non-party with a copy of this Order, the relevant discovery request(s), and a
reasonably specific description of the information requested; and (c) upon request of the nonparty, allow the non-party to inspect the information being sought in discovery. If the non-party
fails to object or seek a protective order from this Court within 14 days of receiving the notice
and accompanying information, the receiving party may produce the non-party’s confidential
information responsive to the discovery request. If the non-party timely seeks a protective order,
the receiving party shall not produce any information in its possession or control that is subject
to the confidentiality agreement with the non-party before a determination by the Court. Absent
a court order to the contrary, the non-party shall bear the burden and expense of seeking
protection from the Court of its confidential information.
18.

Within 60 days of the termination of this action, including any appeals, each party

shall either destroy or return to the opposing party all documents designated by the opposing
party as “Confidential” or “Confidential — Attorneys’ Eyes Only” and all copies of such
documents, and shall destroy all extracts and/or data taken from such documents. Each party
shall provide a certification as to such return or destruction within the 60-day period. Attorneys,
however, shall be entitled to retain a set of all documents filed with the Court and all
correspondence generated in connection with the action.
19.

Any party may apply to the Court for a modification of the Protective Order, and

nothing in the Protective Order shall be construed to prevent a party from seeking such further

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provisions enhancing or limiting confidentiality as may be appropriate.
20.

No action taken in accordance with the Protective Order shall be construed as a

waiver of any claim or defense in the action or of any position as to discoverability or
admissibility of evidence.
21.

The obligations imposed by the Protective Order shall survive the termination of

this action. Within 60 days following the expiration of the last period for appeal from any order
issued in connection with this action, the parties shall remove any materials designated
“Confidential” from the office of the Clerk of Court. Following that 60-day period, the Clerk of
Court may destroy all “Confidential” materials.
Dated March 21, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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Jointly submitted by:
Dated: March 21, 2013

FAEGRE BAKER DANIELS LLP

By

/s/ Daniel D. Williams
Sarah L. Brew
Steven B. Toeniskoetter
Kiri N. Somermeyer
90 South Seventh Street, Suite 2200
Minneapolis, Minnesota 55402-3901
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Marie E. Williams
Daniel D. Williams
1700 Lincoln Street, Suite 3200
Denver, Colorado 80203
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Pepperidge Farm, Incorporated

Dated: March 21, 2013

THE LAW OFFICES OF HOWARD W.
RUBINSTEIN, P.A.
By

/s/ Benjamin M. Lopatin
Benjamin M. Lopatin, Esq.
One Embarcadero Center, Suite 500
San Francisco, CA 94111
Email: [e-mail]
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiff Sonya Bolerjack and
the Proposed Class

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EXHIBIT “A” TO STIPULATED PROTECTIVE ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02918-PAB-BNB
SONYA BOLERJACK, as an individual, and on behalf of all others similarly situated,
Plaintiff,
v.
PEPPERIDGE FARM, INC., a Connecticut corporation,
Defendant.
______________________________________________________________________________
AGREEMENT TO STIPULATED PROTECTIVE ORDER

I, __________________________________________________, declare that:
I reside at __________________________________________________ in the city of
_________________________, county of _________________________, state of
_________________________;
I am currently employed by ___________________________________________
located at __________________________________________________ and my current job title
is __________________________________________________.
I have read and believe I understand the terms of the Protective Order issued on or about
March _____, 2013, in the case titled Bolerjack v. Pepperidge Farm, Inc., Civil Action No. 12cv-02918-PAB-BNB, pending in the United States District Court for the District of Colorado. I

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agree to comply with and be bound by the provisions of the Protective Order. I understand that
any violation of the Protective Order may subject me to sanctions by the Court.
I shall not divulge any documents, or copies of documents, designated “Confidential” or
“Confidential — Attorneys’ Eyes Only” obtained in accordance with such Protective Order, or
the contents of such documents, to any person other than those specifically authorized by the
Protective Order. I shall not copy or use such documents except for the purposes of this action
and in accordance with the terms of the Protective Order.
As soon as practical, but no later than 30 days after final termination of this action, I shall
return to the attorney from whom I have received them, any documents in my possession
designated “Confidential” or “Confidential — Attorneys’ Eyes Only,” and all copies, excerpts,
summaries, notes, digests, abstracts, and indices relating to such documents.
I submit myself to the jurisdiction of the United States District Court for the District of
Colorado, for the purpose of enforcing or otherwise providing relief relating to the Protective
Order. Further, I appoint __________________________________________ [print or type full
name] of __________________________________________ [print or type full address and
telephone number] as my Colorado agent for service of process in connection with this action or
any proceedings related to enforcement of this Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.

(Signature)

Executed on:
(Date)

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