Willagirl, LLC v. The Wella Corporation

Filing 8

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Jed S. Rakoff on 6/16/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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WILLAGIRL LLC,

Plaintiff and Counterclaim-Defendant,

11-CV-OI017 (JSR)
PROTECTIVE ORDER

v

THE WELLA CORPORATION,

Defendant and Counterclaim-Plaintiff.

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JED S. RAKOFF, U.S.D.J.
WHEREAS, the parties having agreed to the following terms of confidentiality, and the
Court having found that good cause exists for issuance of an appropriately-tailored
confidentiality order governing the pre-trial phase of this action (the "Action"), it is therefore
hereby
ORDERED that any person subject to this Order - including without limitation the
parties to this action, their representatives, agents, experts and consultants, all third parties
providing discovery in this action, and all other interested persons with actual or constructive
notice of this Order

shall adhere to the following terms governing the handling of documents,

testimony, depositions, deposition exhibits, interrogatory responses, admissions, and any other
information produced, given or exchanged by and among the parties to this Action or by any
third party in connection with discovery in the Action (such information hereinafter referred to as
"Discovery Material"):
1. Any party or third party providing Discovery Material (the "Producing Party") may

designate any Discovery Material as "Confidential" under the terms of this Orde'r if the
Producing Party in good faith believes that such Discovery Material contains non-pUblic,
confidential, proprietary or commercially sensitive information that requires the protections

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provided in this Order ("Confidential Discovery Material"). Any Producing Party may designate
any Confidential Discovery Material as "Highly Contidential: Attorneys' Eyes Only" under the
terms of this Order if such party in good faith reasonably believes that disclosure of the
Confidential Discovery Material other than as permitted pursuant to Paragraph 6 of this Order is
substantially likely to cause injury to the Producing Party.

("Highly Confidential Discovery

Material"). For purposes of this Order:
(a)

Discovery Material considered to be Confidential Discovery Material

includes all non-public information relating to trade secrets, proprietary information, tax data,
personnel, business information, personal financial information, or other personally sensitive or
proprietary information.
(b)

Discovery Material considered to be Highly Confidential Discovery

Material includes all non-public information relating to customer lists and infonnation, tinancial
results or data, financial or business plans and strategies, projections or analyses, proposed
strategic transactions or other business combinations, acquisition offers or expressions of
interest, studies or analyses by internal or outside experts, competitive analyses, business and
marketing plans and strategies, or other highly sensitive or proprietary information, including,
but not limited to, personal financial information.
2.

Discovery Material, or information derived therefrom, shall be used solely for

purposes of the Action and shall not be used for any other purpose, including, without limitation,
any business or commercial purpose, or any communications with, between or among
stockholders or any third-party not involved in the Action.
3.

Any party who objects to any designation of confidentiality may at any time prior

to the trial of this action serve upon counsel for the designating person a written notice stating

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with particularity the grounds of the objection or request. If agreement cannot be reached
promptly, counsel for all affected persons will convene a joint telephone call with the Court to
obtain a ruling.
4.

The designation of Discovery Material as "Confidential" or "Highly

Confidential" for purposes of this Stipulation and Order shall be made in the following manner
by any Producing Party:
(a)

in the case of documents or other materials (apart from depositions

or other pretrial testimony): by affixing the legend "Confidential" or "Highly Confidential" to
each page containing any Confidential or Highly Confidential Discovery Material, except that in
the case of multi-page documents bound together by staple or other permanent binding, the word
(s) "Confidential" or "Highly Confidential" need only be stamped on the first page of the
document in order for the entire document to be treated as Confidential or Highly Confidential
Discovery Material; provided that the failure to designate a document as "Confidential" or
"Highly Confidential" does not constitute a waiver of such claim, and a Producing Party may so
designate a document after such document has been produced, with the effect that such
document is subject to the protections of this Stipulation and Order on and after the date of its
designation; and
(b)

with respect to deposition transcripts and exhibits, a producing

person or that person's counsel may indicate on the record that a question calls for Confidential
information, in which case the transcript of the designated testimony shall be bound in a separate
volume and marked "Confidential Information Governed by Protective Order" by the reporter.

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5.

Discovery Material designated "Confidential" may be disclosed, summarized,

described, characterized or otherwise communicated or made available in whole or in part only
to the following persons:
(a)

The parties and counsel who represent parties that have appeared in the

Action (and members of their firms), and regular and temporary employees and service vendors
of such counsel (including outside copying services and outside litigation support services)
necessary to assist in the conduct of the Action for use in accordance with this Stipulation and
Order;
(b)

experts or consultants necessary to assist counsel for parties that have

appeared in the Action, provided, however, that Confidential Discovery Material shall not be
disclosed to any expert or consultant who is assisting or advising, or who within the preceding 12
months assisted or advised, any person or entity that is a competitor with any party to this Action
or the attorney for any such person or entity;
(c)

witnesses or deponents (other than witnesses and deponents covered by (d)

below), and their counsel, during the course of or, to the extent necessary, in preparation for
depositions or testimony in the Action;
(d)

the directors, officers, employees (including, but not limited to, in-house

counsel) and general or limited partners of the parties, or any subsidiary or affiliate thereof, who
are assisting the parties in this Action, or who appear as witnesses or deponents, and any
professional employee of any person providing professional advice to any of the corporate
defendants;
(e)

the Court and its employees, pursuant to this Stipulation and Order;

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court reporters employed in connection with the Action; and

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(g)

any other person only upon order of the Court or upon stipulation of the

Producing Party.
6.

Discovery materials

designated

"Highly Confidential"

may be

disclosed,

summarized, described, characterized or otherwise communicated or made available in whole or
in part only to the following persons:
(a)

The counsel who represent parties that have appeared in the Action, and

members of their firms, and regular and temporary employees and service vendors of such
counsel (including outside copying services and outside litigation support services) necessary to
assist in the conduct of the Action for use in accordance with this Stipulation and Order;
(b)

Katherine Ruwe and Lynne Miller, in-house counsel for The Procter &

Gamble Company ("P&G") representing The Wella Corporation in connection with this Action,
and, in the event that Ms. Ruwe or Ms. Miller leave the employment of P&G or otherwise cease
to be involved in representing The Wella Corporation in connection with this Action, The Wella
Corporation may designate substitute in-house counsel upon written notice to Willagirl LLC
giving Willagirl LLC a reasonable opportunity to object;
(c)

experts or consultants necessary to assist counsel for parties that have

appeared in the Action, provided, however, that Highly Confidential Discovery Material shall
not be disclosed to any expert or consultant who is assisting or advising, or who within the
preceding 12 months assisted or advised, any person or entity that is a competitor with any party
to this Action or the attorney for any such person or entity;
(d)

the Court and its employees, pursuant to this Stipulation and Order;

(e)

any person indicated on the face of a document to be the author,

addressee, or a copy recipient of the document;

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(f)

court reporters employed in connection with the Action; and

(g)

any other person only upon order of the Court or upon stipulation of the

Producing Party. Such stipulation shall not be unreasonably withheld by the Producing Party.
7.

Notwithstanding anything contained in the foregoing paragraphs 5 and 6,

Confidential or Highly Confidential Discovery Material may be provided to persons listed in
Paragraphs 5(b) and 6( c) above to the extent necessary for such expert or consultant to prepare a
written opinion,

to

prepare to testify, or to assist counsel in the prosecution or defense of this

Action, provided that such expert or consultant are using said Confidential or Highly
Confidential Discovery Material solely in connection with this Action and further provided that
such expert first signs an undertaking in the form attached as Exhibit A hereto, agreeing in
\\-Titing

to

be bound by the terms and conditions of this Order.

Such undertakings shall be

retained in the files of the counsel for the parties who have engaged such consultant or expert.
8.

Every person given access to Confidential or Highly Confidential Discovery

Material or information contained therein shall be advised that the infonnation is being disclosed
pursuant and subject to the terms of this Order and may not be disclosed other than pursuant to
the terms thereof. All persons listed in Paragraph 5( c) may be given access to Confidential
Discovery Material or infonnation contained therein, only after (i) they confinn their
understanding and agreement to abide by the terms of this Order by signing a copy of Exhibit A
hereto or Oi) a court of competent jurisdiction orders them to abide by the terms of the Order.
9.

If at any time prior to the trial of this action, a producing person realizes that some

portion[s] of Discovery Material that that person previously produced without limitation should
be designated as Confidential or Highly Confidential, he may so designate by so apprising all

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parties in writing, and such designated portion[ s] of the Discovery Material will thereafter be
treated as Confidential and/or Highly Confidential under the terms of this Order.
10.

Entering into, agreeing to and/or producing or receiving Confidential or Highly

Confidential Discovery Material or otherwise complying with the terms of this Order shall not:
(a)

operate as an admission by any party that any particular Confidential or

Highly Confidential Discovery Material contains or reflects trade secrets or any other type of
confidential information;
(b)

prejudice in any way the rights of the parties to object to the production of

documents they consider not subject to discovery, or operate as an admission by any party that
the restrictions and procedures set forth herein constitute adequate protection for any particular
information deemed by any party to be Confidential or Highly Confidential Discovery Material;
(c)

prejudice in any way the rights of any party to object to the authenticity or

admissibility into evidence of any document. testimony or other evidence subject to this
Stipulation and Order;
(d)

prejudice in any way the rights of a party to seek a determination by the

Court whether any Discovery Material or Confidential or Highly Confidential Discovery
Material should be subject to the terms of this Stipulation and Order;
(e)

prejudice in any way the rights of a party to petition the Court for a further

protective order relating to any purportedly confidential information; or
(f)

prevent the parties to this Stipulation and Order from agreeing to alter or

waive the provisions or protections provided for herein with respect to any particular Discovery
Material.

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11.

All Confidential and/or Highly Confidential Discovery Material filed with the

Court, and all portions of pleadings, motions or other papers filed with the Court that disclose
such Confidential and/or Highly Confidential Discovery Material, shall be filed under seal with
the Clerk of the Court and kept under seal until further order of the Court. The parties will use
their best efforts to minimize such sealing.
12.

Ail persons are hereby placed on notice that the Court is unlikely to seal or

otherwise afford confidential treatment to any Discovery Material introduced in evidence at trial,
even if such material has previously been sealed or designated as Confidential or Highly
Confidential. The Court also retains discretion whether to afford confidential treatment to any
Confidential and/or Highly Confidential Document or information contained in any Confidential
and/or Highly Confidential Document submitted to the Court in connection with any motion,
application, or proceeding that may result in an order and/or decision by the Court.
13.

Each person who has access to Discovery Material that has been designated as

Confidential or Highly Confidential shall take all due precautions to prevent the unauthorized or
inadvertent disclosure
of such material.
14.

If, in connection with this litigation, a party inadvertently discloses information

subject to a claim of attorney-client privi lege or attorney work product protection ("Inadvertently
Disclosed Information"), such disclosure shall not constitute or be deemed a waiver or forfeiture
of any claim of privilege or work product protection with respect to the Inadvertently Disclosed
Information and its subject matter.
15.

If a disclosing party makes a claim of inadvertent disclosure, the receiving party

shall, within five business days, return or destroy all copies of the Inadvertently Disclosed

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Information, and provide a certification of counsel that all such information has been returned or
destroyed.
16.

Within fIve business days of the notifkation that such Inadvertently Disclosed

Information has been returned or destroyed, the disclosing party shall produce a privilege log

with respect to the Inadvertently Disclosed Information.

17.

The receiving party may move the Court for an Order compelling production of

the Inadvertently Disclosed Information. The motion shall be filed under seal, and shall not
assert as a ground for entering such an Order the fact or circumstances of the inadvertent
production.
19.

The disclosing party retains the burden of establishing the privileged or protected

nature of any Inadvertently Disclosed Information. Nothing in this Order shall limit the right of
any party to request an in camera review of the Inadvertently Disclosed Information.
20.

The provisions of this Stipulation and Order shall, absent written permission of

the Producing Party or further order of the Court, continue to be binding throughout and after the
conclusion of the Action, including without limitation any appeals therefrom. Within thirty days
after receiving notice of the entry of an order, judgment or decree finally disposing of all
litigation in which Confidential or Highly Confidential Discovery Material is permitted to be
used, including the exhaustion of all permissible appeals, all persons having received
Confidential or Highly Confidential Discovery Material shall, upon written request of the
Producing Party, either make a good faith effort to return such material and all copies thereof
(including summaries and excerpts) to counsel for the party that produced it or destroy all such
Confidential or IJighly Confidential Discovery Material and certi fy that fact to counsel for the
Producing Party,

Counsel for the parties shall be entitled to retain their own court papers,

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deposition and trial transcripts and attorney work product (including discovery material
containing Confidential or Highly Confidential Discovery Material) provided that such counsel,
and employees of such counsel, shall not disclose such court papers or attorney work product to
any person except pursuant to court order or agreement with the party that produced the
Confidential or Highly Confidential Discovery Material. All materials returned to the parties or
their counsel by the Court likewise shall be disposed of in accordance with this paragraph.
21.

This Court shall retain jurisdiction over all persons subject to this Order to the

extent necessary to enforce any obligations arising hereunder or to impose sanctions for any
contempt thereof.

THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK

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This Stipulation may be signed in counterparts and exchanged by facsimile or
email, which shall have the same force and effect as an original signature.
SO STIPULATED AND AGREED.

BICKEL & BREWER

DA VIS WRIGHT TREMAINE LLP

-:J =jr:J '/CZ

~nce,III

By: - F ' - - 7 f - - r - - - - - - - - - - - ­
W lli m A. Brewer III
Alexander D. Widell
767 Fifth Avenue, 50th Floor
New York, New York 10153
[phone]

1633 Broadway

New York, New York 10019

(212) 489~8230

Attorney for Defendant and Counterclaim
Plaintiff The Wella Corporation

CORRELL LAW GROLP
P. Kent Correll (PC 2609)

250 Park Avenue, 7th Floor

New York, NY 10177

[phone]

Attorneys for Plaintiff and Counterclaim
Defendant Wi/lagirl LLC

SO ORDERED.

Dated: New York, New York

~~~fOll

JJ

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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WILLAGIRL LLC,
Plaintiff and Counterclaim-Defendant,

ll-CV-OIOI7 (JSR)

-v

NON-DISCLOSURE
AGREEMENT

TltE WELLA CORPORATION,
Defendant and Counterclaim-Plaintiff.
---------------------------------X

J,

acknowledge that I have read and understand the

Protective Order in this action governing the non-disclosure of those portions of Discovery
Material that have been designated as Confidential. I agree that I will not disclose such
Confidential Discovery Material to anyone other than for purposes of this litigation and that at
the conclusion of the litigation I will return all discovery information to the party or attorney
from whom I received it. By acknowledging these obligations under the Protective Order, J
understand that I am submitting myself to the jurisdiction of the United States District Court for
the Southern District of New York for the purpose of any issue or dispute arising hereunder and
that my willful violation of any term of the Protective Order could subject me to punishment for
contempt of Court.
Dated: _ _ _ __

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