Carter v. The Dial Corporation

Filing 57

STIPULATION AND ORDER re: The Nielsen Company. So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

In Re: Dial Complete Marketing and
Sales
Litigation (MDL No. 2263)

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MDL Docket No. 11-md-2263-SM
ALL CASES

STIPULATION AND ORDER
WHEREAS, The Nielsen Company (US) LLC (“Nielsen”) has provided certain
market research information to The Dial Corporation (“Client”) in the form of reports
(“Nielsen Reports”);
WHEREAS, the Nielsen Reports have been provided to Client for limited uses
pursuant to contract;
WHEREAS, the Nielsen Reports and the market research information therein
(“Nielsen information”) are proprietary to Nielsen and have a continuing value to Nielsen
in that Nielsen regularly receives income from providing the information contained in
Nielsen Reports to other clients that might be interested in the information contained in
said Reports;
WHEREAS, the plaintiffs in the above-captioned litigation (“Requesting Parties”)
have requested that Nielsen waive certain of its rights and permit certain limited
disclosure of Nielsen information relating to Dial liquid hand soap (including regular,
antibacterial, foaming and/or non-foaming) (“Dial Handsoap”) and Nielsen, in turn, has
requested the plaintiffs waive certain of its rights and allow a disclosure only on certain
terms; and
WHEREAS, the parties hereto desire to go forward with the discovery of
documents containing market research information relating to Dial Handsoap without
compromising the confidentiality and proprietary nature of Nielsen information; and
WHEREAS, the parties hereto desire to use documents containing Nielsen
information in pre-trial discovery, class certification, trial and appeal in such a way that
the Nielsen information will not be disclosed to anyone other than as set forth herein, and
further that the methodology utilized by Nielsen to generate syndicated market research
reports and information will not be an issue that is contested in this lawsuit;
THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between
the parties hereto and Nielsen that Nielsen hereby does provide a limited waiver of its
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rights in order to allow Client to disclose documents containing Nielsen information to
the attorneys, consultants and retained experts for the Requesting Parties so that they may
review the contents of said documents, provided that the terms and conditions set forth
below are complied with by each party to this litigation:
1. This Order shall govern the disposition of any documents or information
prepared, compiled and provided by Nielsen, or prepared by Client using Nielsen
information, as specified below which may be produced by any party hereto in response
to any discovery request.
2. This Stipulation shall pertain only to the following Nielsen Reports and
Nielsen information:
a.
Reports generated by Client for business purposes using Nielsen’s
Account Planner and Spectra services containing syndicated Nielsen information
relating to retail sales of Dial Handsoap including other manufacturers’ products
in the same category contained in the same reports;
b.
Custom BASES or similar research reports prepared for Client by
Nielsen for business purposes relating to Dial Handsoap; and
c.
Internal, ordinary-course e-mails, memoranda and other documents
prepared by Client relating to Dial Handsoap and containing information relating
to, derived from or specifically referencing certain Nielsen information contained
in the Nielsen Reports.
Nielsen Reports or documents containing or concerning Nielsen information that do not
relate to Dial Handsoap or other liquid or bar hand soaps shall not be disclosed under any
condition. To the extent that a document in categories (a), (b), or (c) contains Nielsen
information that does not relate to such products, such information shall be redacted by
the producing party before the document is produced.
3. All Nielsen Reports and other documents containing Nielsen information and
all copies thereof shall be marked as “Highly Confidential” pursuant to the
Confidentiality Agreement and Protective Order entered in this litigation.
4. The parties to the underlying lawsuit agree and stipulate that the syndicated
market research information provided by Nielsen to Client reflecting Nielsen’s estimates
of retail activity relating to Dial Handsoap is a reasonably accurate representation of such
activity and is admissible as evidence of such activity or assessment (provided that such
evidence is relevant and material to any particular issue on which it may be offered). The
parties specifically stipulate to the authenticity and foundation for all information
produced by Nielsen.
5. The parties hereby agree and stipulate that the syndicated Nielsen Reports and
Nielsen information specified herein may be entered into evidence at trial, subject to the
parenthetical limitation contained in paragraph 4.
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6. The parties hereto agree not to assert and do hereby waive any objections to
the authenticity and genuineness of any Nielsen Report or Nielsen information.
7. The parties hereto agree that neither Nielsen nor any Nielsen officer, director,
employee, agent, or other individual will be subpoenaed or otherwise required to testify
in any manner concerning any syndicated Nielsen Report or Nielsen Information to be
offered into evidence, and further that the methodology utilized by Nielsen to generate
such syndicated Reports or Information related to the syndicated Reports will not be an
issue that is contested in this lawsuit.
8. Copies of Nielsen Reports or Nielsen information may be disclosed to other
members and employees of the law firm representing the parties, provided that the other
members and employees of the firm have a need to know the information and will be
bound by the terms of this Order.
9. The Nielsen Reports and Nielsen information specified herein may be
disclosed to the Requesting Parties, independent experts, consulting firms, and other
independent contractors actually retained or employed to consult with, advise, assist,
and/or counsel in the preparation or trial of this action, provided such persons have
entered into the Confidentiality Agreement and Protective Order now in place in the
lawsuit. Said persons may make and retain copies of the documents during the pendency
of this litigation subject to the terms of this Order.
10. The attorneys for Client shall promptly provide Nielsen with an accurate
listing of all Nielsen Reports and Nielsen information provided to Requesting Party’s
attorneys pursuant to this Order.
11. All deposition testimony concerning Nielsen Reports or information shall be
designated “Highly Confidential” pursuant to the Confidentiality Agreement and
Protective Order entered in this litigation. The parties agree to provide Nielsen with
copies of any trial exhibits derived from Nielsen Information five (5) business days
before the time such trial exhibits are offered into evidence.
12. The parties acknowledge that Nielsen retains all rights in and to the Nielsen
Reports and Nielsen Information except as specifically waived herein. At the conclusion
of the litigation, including any and all appeals and retrials, all persons who have had
access to Nielsen Reports or Nielsen Information shall return any and all copies of the
Nielsen Reports and information in their possession to Client or shall destroy such copies
and certify such destruction.
13. The parties agree to defer, but reserve the right to contest, issues regarding
the accuracy of, or methodology underlying, BASES reports or other custom, nonsyndicated reports or analyses prepared for Client by Nielsen.
14. A party shall give Nielsen ten (10) business days’ advance written notice
before contesting any issue pursuant to Paragraph 13, identifying the issue with
particularity. The parties shall then promptly meet and confer with Nielsen in good faith.
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Should the Parties and Nielsen not agree on a resolution, the Parties reserve their right to
contest the issue pursuant to Paragraph 13.
15. Nielsen reserves the right to object to, oppose, or seek to quash any attempt
by a party to contest an issue pursuant to Paragraph 13. Nielsen shall meet and confer
with the parties in good faith before requesting the Court’s intervention.
16. In the event that any party wishes to seek testimony from Nielsen by
subpoena regarding any BASES report or other custom, non-syndicated report or analysis
prepared for Client by Nielsen, the parties shall first meet and confer with Nielsen in
good faith to (i) discuss possible alternatives such as proceeding via stipulation, affidavit,
or declaration and (ii) ensure that the confidentiality of Nielsen’s Information and
methodology will be maintained through appropriate safeguards.
17. Should the parties and Nielsen not agree on an acceptable alternative pursuant
to Paragraph 16, the parties reserve their right to subpoena a Nielsen employee to testify
by deposition or at trial. A party shall give Nielsen ten (10) business days’ advance
written notice, following notice as under Paragraph 14, before issuing any subpoena,
identifying with particularity the discovery or testimony to be sought. Nielsen reserves
its rights to object to, oppose, or seek to quash any such subpoena.
18. The parties agree to defer, but reserve their rights with respect to, issues
regarding the admissibility into evidence of any BASES report or other custom, nonsyndicated report or analysis prepared for Client by Nielsen, summaries of such material,
or testimony about such material. The parties and Nielsen agree to meet and confer in
good faith regarding an appropriate evidentiary stipulation in the event that one or more
parties wish to use, or offer any testimony regarding, documents or information covered
by this paragraph at trial or in any other evidentiary proceeding.
19. The terms of this Order shall survive and remain in force and effect after the
termination of this litigation and may not be altered or modified except by written
stipulation executed by counsel for all parties hereto, and approved by Nielsen.
20. It is agreed between the parties that Nielsen shall not be considered a party to
this lawsuit, and the parties hereto agree that Nielsen shall have the right to enforce this
Order before this Court at any time during or after this litigation.
21. All notices concerning this Stipulation to Nielsen shall be mailed to Nielsen
at the time that the notice to Nielsen is to be given as follows:
Eric Rubenstein
Senior Vice President and General Counsel – Global Media Services
The Nielsen Company
770 Broadway
New York, New York 10003

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The parties giving the notice shall also telephone the fact of the notice to the Senior Vice
President and General Counsel – Global Media Services of The Nielsen Company by
calling 646-654-5042.
PLAINTIFFS’ INTERIM LEAD COUNSEL
Dated: November 14, 2012

By:

/s/ Lucy J. Karl
Lucy J. Karl
NH Bar #5547
Shaheen & Gordon, P.A.
107 Storrs Street, PO Box 2703
Concord, NH 03302-2703
Telephone: [phone]
Facsimile: [phone]
[e-mail]

THE NIELSON COMPANY
Dated: November 14, 2012

By:

/s/ Eric Rubenstein
Eric Rubenstein
Senior VP and General Counsel
Global Media Services
770 Broadway
New York, New York 10003
Telephone: [phone]
[e-mail]

THE DIAL CORPORATION
Dated: November 14, 2012

By:

/s/ Eugene A. Schoon
Eugene A. Schoon (IL Bar #6184081)
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: [phone]
[e-mail]

SO ORDERED, ADJUDGED, AND DECREED
29th
November
This ___ day of _________________, 2012
_________________________________________
THE HONORABLE STEVEN J. McAULIFFE
UNITED STATES DISTRICT JUDGE
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