Ferrari v. Vitamin Shoppe, Inc.

Filing 70

Judge George A. O'Toole, Jr: ORDER entered granting 64 Motion for Protective Order. Stipulated Protective Order entered. (Halley, Taylor)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
RICHARD FERRARI, individually and on
behalf of all others similarly situated,
Plaintiff,

Civil Action No. 1:17-cv-10475-GAO

v.
VITAMIN SHOPPE, INC.,
Defendant.
STIPULATED PROTECTIVE ORDER
1.
Any party to this litigation and any third-party shall have the right to designate as
“Confidential” and subject to this Order any information, document, or thing, or portion of any
document or thing: (a) that contains trade secrets, competitively sensitive technical, marketing,
financial, sales or other confidential business information, or (b) that contains private or
confidential personal information, or (c) that contains information received in confidence from
third parties, or (d) which the producing party otherwise believes in good faith to be entitled to
protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure and Local Civil Rule
7.2. Any party to this litigation or any third party covered by this Order, who produces or
discloses any Confidential material, including without limitation any information, document,
thing, interrogatory answer, admission, pleading, or testimony, shall mark the same with the
foregoing or similar legend: “CONFIDENTIAL” or “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER” (hereinafter “Confidential”).
2.
Any party to this litigation and any third-party shall have the right to designate as
“Attorneys’ Eyes Only” and subject to this Order any information, document, or thing, or portion
of any document or thing that contains highly sensitive business or personal information, the
disclosure of which is highly likely to cause significant harm to an individual or to the business
or competitive position of the designating party. Any party to this litigation or any third party
who is covered by this Order, who produces or discloses any Attorneys’ Eyes Only material,
including without limitation any information, document, thing, interrogatory answer, admission,
pleading, or testimony, shall mark the same with the foregoing or similar legend:
“ATTORNEYS’ EYES ONLY” or “ATTORNEYS’ EYES ONLY – SUBJECT TO
PROTECTIVE ORDER” (hereinafter “Attorneys’ Eyes Only”).
3.
All Confidential material shall be used by the receiving party solely for purposes of
the prosecution or defense of this action, shall not be used by the receiving party for any business,
commercial, competitive, personal or other purpose, and shall not be disclosed by the receiving
party to anyone other than those set forth in Paragraph 4, unless and until the restrictions herein are
removed either by written agreement of counsel for the parties, or by Order of the Court. It is,
however, understood that counsel for a party may give advice and opinions to his or her client

solely relating to the above-captioned action based on his or her evaluation of Confidential
material, provided that such advice and opinions shall not reveal the content of such Confidential
material except by prior written agreement of counsel for the parties, or by Order of the Court.
4.
Confidential material and the contents of Confidential material may be disclosed
only to the following individuals under the following conditions:
(a)
Outside counsel and the administrative staff of outside counsel’s firms
and relevant in-house counsel for the parties;
(b)
Any party to this action who is an individual, and every employee,
director, officer, or manager of any party to this action who is not an individual, but as to
both only to the extent necessary to further the interest of the parties in this litigation,
and only after executing a written consent to be bound by the terms of Protective Order
in the form attached as Exhibit A.
(c)
Independent consultants or Expert witnesses , and the administrative for
the independent consultants or expert witnesses, retained by outside counsel for
purposes of this action, provided they have signed a non-disclosure agreement in the
form attached hereto as Exhibit A;
(d)
Secretarial, paralegal, clerical, duplicating and data processing
personnel of the foregoing;
(e)
reporters;
(f)

The Court and court personnel, including but not limited to, stenographic
Any court reporter or videographer reporting a deposition;

(g)
The author(s) and/or original recipient (s) of a document, provided that
such persons may not retain copies of the designated material unless permitted by other
provisions of the protective order;
(h)
Witnesses at deposition and/or trial during their testimony at deposition or
trial, provided that such witnesses may not retain copies of the designated material unless
permitted by other such provisions of this protective order, and only after executing a written
consent to be bound by the terms of this Protective Order in the form attached as Exhibit A or
agreeing on the record, after reviewing the terms of the protective Order, to be bound by the
terms of the Protective Order; and

(i)
Vendors retained by or for the parties to assist in preparing for pretrial
discovery, trial and/or hearings including, but not limited to, court reporters, litigation
support personnel, jury consultants, individuals to prepare demonstrative and audiovisual
aids for use in the courtroom or in depositions or mock jury sessions, as well as their
staff, stenographic, and clerical employees whose duties and responsibilities require
access to such materials.
5.

Confidential material shall be used only by individuals permitted access to
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it under Paragraph 4. Confidential material, copies thereof, and the information contained
therein, shall not be disclosed in any manner to any other individual, until and unless (a) outside
counsel for the party asserting confidentiality waives the claim of confidentiality, or (b) the
Court orders such disclosure.
6.
With respect to any depositions that involve a disclosure of Confidential material
of a party to this action, such party shall have until thirty (30) days after receipt of the deposition
transcript within which to inform all other parties that portions of the transcript are to be
designated Confidential, which period may be extended by agreement of the parties. No such
deposition transcript shall be disclosed to any individual other than the individuals described in
Paragraph 4(a), (b), (c), (d) and (f) above and the deponent during these thirty (30) days, and no
individual attending such a deposition shall disclose the contents of the deposition to any
individual other than those described in Paragraph 4(a), (b), (c), (d) and (f) above during said
thirty (30) days. Upon being informed that certain portions of a deposition are to be designated
as Confidential, all parties shall immediately cause each copy of the transcript in its custody or
control to be appropriately marked and limit disclosure of that transcript in accordance with
Paragraphs 3 and 4.
7.
Material produced and marked as Attorneys’ Eyes Only may be disclosed only to
outside counsel for the receiving party and to such other persons as counsel for the producing
party agrees in advance or as Ordered by the Court.
8.
The parties acknowledge that certain documents and/or information produced by
Defendant may include the names, addresses, phone numbers, and/or other personal and
confidential information of putative class members (“Confidential Customer Information”). Any
Confidential Customer Information (including, but not limited to, names, addresses, phone
numbers, and/or other personal and confidential information of putative class members)
produced by Defendant in accordance with this Order shall be subject to the following additional
restriction: (a) access to Confidential Customer Information shall be restricted to Plaintiff’s
counsel, their experts, consultants, or anyone else acting on counsel’s behalf (collectively,
“Plaintiffs’ Counsel”), not the putative class representative or any putative class members.
9.
If counsel for a party receiving documents or information designated as
Confidential or Attorneys’ Eyes Only hereunder objects to such designation of any or all of such
items, the following procedure shall apply:
(a) Counsel for the objecting party shall serve on the designating party or third party
a written objection to such designation, which shall describe with particularity the
documents or information in question and shall state the grounds for objection. Counsel
for the designating party or third party shall respond in writing to such objection within
14 days, and shall state with particularity the grounds for asserting that the document or
information is Confidential or Attorneys’ Eyes Only. If no timely written response is
made to the objection, the challenged designation will be deemed to be void. If the
designating party or nonparty makes a timely response to such objection asserting the
propriety of the designation, counsel shall then confer in good faith in an effort to resolve
the dispute.

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(b) If a dispute as to a Confidential or Attorneys’ Eyes Only designation of a
document or item of information cannot be resolved by agreement, the proponent of the
designation being challenged shall present the dispute to the Court by the procedures
outlined in Local Civil Rule 37.1, before filing a formal motion for an order regarding the
challenged designation. The document or information that is the subject of the filing shall
be treated as originally designated pending resolution of the dispute.
10.
Rule 7.2.

All requests to seal documents filed with the Court shall comply with Local Civil

11.
If the need arises during trial or at any Hearing before the Court for any party to
disclose Confidential or Attorneys’ Eyes Only information, it may do so only after giving notice
to the producing party and as directed by the Court.
12.
To the extent consistent with applicable law, the inadvertent or unintentional
disclosure of Confidential material that should have been designated as such, regardless of
whether the information, document or thing was so designated at the time of disclosure, shall not
be deemed a waiver in whole or in part of a party’s claim of confidentiality, either as to the
specific information, document or thing disclosed or as to any other material or information
concerning the same or related subject matter. Such inadvertent or unintentional disclosure may
be rectified by notifying in writing counsel for all parties to whom the material was disclosed
that the material should have been designated Confidential within a reasonable time after
disclosure. Such notice shall constitute a designation of the information, document or thing as
Confidential under this Protective Order.
13.
When the inadvertent or mistaken disclosure of any information, document or
thing protected by privilege or work-product immunity is discovered by the producing party and
brought to the attention of the receiving party, the receiving party’s treatment of such material
shall be in accordance with Federal Rule of Civil Procedure 26(b)(5)(B). Such inadvertent or
mistaken disclosure of such information, document or thing shall not by itself constitute a waiver
by the producing party of any claims of privilege or work-product immunity. However, nothing
herein restricts the right of the receiving party to challenge the producing party’s claim of
privilege if appropriate within a reasonable time after receiving notice of the inadvertent or
mistaken disclosure.
14.
No information that is in the public domain or which is already known by the
receiving party through proper means or which is or becomes available to a party from a source
other than the party asserting confidentiality, rightfully in possession of such information on a
non-confidential basis, shall be deemed or considered to be Confidential material under this
Protective Order.
15.
This Protective Order shall not deprive any party of its right to object to discovery
by any other party or on any otherwise permitted ground. This Protective Order is being entered
without prejudice to the right of any party to move the Court for modification or for relief from
any of its terms.
16.

This Protective Order shall survive the termination of this action and shall remain
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in full force and effect unless modified by an Order of this Court or by the written stipulation of
the parties filed with the Court.
17.
Upon final conclusion of this litigation, each party or other individual subject to
the terms hereof shall be under an obligation to assemble and to return to the originating source
all originals and unmarked copies of documents and things containing Confidential material and
to destroy, should such source so request, all copies of Confidential material that contain and/or
constitute attorney work product as well as excerpts, summaries and digests revealing
Confidential material; provided, however, that counsel may retain complete copies of all
transcripts and pleadings including any exhibits attached thereto for archival purposes, subject to
the provisions of this Protective Order. To the extent a party requests the return of Confidential
material from the Court after the final conclusion of the litigation, including the exhaustion of all
appeals therefrom and all related proceedings, the party shall file a motion seeking such relief.
Within sixty (60) business days after the entry of a final non-appealable judgment or order, or the
expiration of the deadline for any party to appeal any final judgment or order, or the complete
settlement of all claims asserted against all parties in this action, each party or other individual
subject to the terms hereof shall be under an obligation to certify to the originating source all
originals and unmarked copies of documents and things containing Confidential and Attorney’s
Eyes Only material have been destroyed or returned.
18.
Each person to whom disclosure of Confidential material is made pursuant to the
terms of this Protective Order, shall subject himself, herself, or itself to the jurisdiction of this
Court for the purpose of contempt proceedings in the event of any violation of this Protective
Order.
19.
All disputes concerning information produced under the protection of this
Protective Order shall be resolved by the United States District Court for the District of
Massachusetts.
20.
This Protective Order shall become effective immediately upon the parties’
execution of it even though prior to approval by the Court.
IT IS SO ORDERED.
Dated: November 19, 2018

/s/ George A. O’Toole, Jr.
___________________________________________
Hon. George A. O’Toole, U.S.D.J.

The terms and form of this Protective Order are hereby consented to:
Dated: September 27, 2018

Dated: September 27, 2018

Plaintiff Richard Ferrari
By His Attorneys,

Defendant Vitamin Shoppe, Inc.,
By Its Attorneys,

/s/ Charles E. Schaffer

/s/ Michael R. McDonald
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Erica C. Mirabella
MIRABELLA LAW, LLC
132 Boylston Street, 5th Floor
Boston, MA 02116
Telephone: [phone]
[e-mail]

Andrea C. Kramer (BBO# 632584)
Julie A. Frohlich (BBO# 554707)
KRAMER FROHLICH LLC
280 Summer Street, 5th Floor
Boston, MA 02210
Telephone: [phone]
[e-mail]
[e-mail]

Nick Suciu III
BARBAT, MANSOUR & SUCIU PLLC
1644 Bracken Road
Bloomfield Hills, Michigan 48302
Telephone: [phone]
[e-mail]

Michael R. McDonald (admitted pro hac vice)
Caroline E. Oks (admitted pro hac vice)
GIBBONS P.C.
One Gateway Center
Newark, New Jersey 07102-5310
Telephone: [phone]
[e-mail]
[e-mail]

Charles E. Schaffer
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: [phone]
[e-mail]

Attorneys for Defendant
Vitamin Shoppe, Inc.

Charles J. LaDuca
Beatrice Yakubu
Cuneo Gilbert & LaDuca, LLP
4725 Wisconsin Avenue NW
Suite 200
Washington, D.C. 20016
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Richard Ferrari

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EXHIBIT A
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
RICHARD FERRARI, individually and
on behalf of all others similarly situated,

Civil Action NO. 1:17-cv-10475-GAO
Document electronically filed

Plaintiff,
AGREEMENT TO BE BOUND BY
PROTECTIVE ORDER

v.
VITAMIN SHOPPE, INC.,
Defendant.

I, ___________________________, being duly sworn, state that:
1.

My address is ____________________________________________________.

2.

My present employer is _____________________________________ and the

address of my present employment is _______________________________________.
3.

My present occupation or job description is ____________________________.

4.

I have carefully read and understand the provisions of the Protective Order in this

case signed by the Court and I will comply with all provisions of the Protective Order.
5.

I will hold in confidence and not disclose to anyone not qualified under the

Protective Order any Confidential material or any words, summaries, abstracts, or indices of
Confidential material disclosed to me.
6.

I will limit use of Confidential material disclosed to me solely for purpose of this

7.

No later than the final conclusion of the case, I will return all Confidential

action.

material and summaries, abstracts, and indices thereof which come into my possession, and
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documents or things which I have prepared relating thereto, to counsel for the party for whom I
was employed or retained.
I declare under penalty of perjury that the foregoing is true and correct.
DATED: _______________ __, 201_
___________________________________
[Name]

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