Walker Wear LLC v. Off-White LLC et al

Filing 100

STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 8/2/2022) (kv)

Case 1:21-cv-07073-LTS-SDA Document 100 Filed 08/02/22 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
8/2/2022
-------------------------------x
:
:
WALKER WEAR LLC,
: Civil No. 21-cv-7073-LTS-SDA
:
Plaintiff,
:
:
v.
: STIPULATION AND [PROPOSED]
: PROTECTIVE ORDER
OFF-WHITE LLC, OFF-WHITE
:
OPERATING SOHO LLC, SAKS FIFTH
:
AVENUE LLC, and SAKS
:
INCORPORATED,
:
:
Defendants.
:
-------------------------------x
STEWART D. AARON, U.S.M.J.
WHEREAS all of the parties to this action (collectively, the “Parties,” and individually, a
“Party”) request that this Court issue a protective order pursuant to Federal Rule of Civil Procedure
26(c) to protect the confidentiality of certain nonpublic and confidential material that will be
exchanged pursuant to and during the course of discovery in this case;
WHEREAS, the Parties, through counsel, agree to the following terms;
WHEREAS, the Parties acknowledge that this Protective Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords only
extends to the limited information or items that are entitled, under the applicable legal principles,
to confidential treatment;
WHEREAS, the Parties further acknowledge that this Protective Order does not create
entitlement to file confidential information under seal; and

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WHEREAS, in light of these acknowledgements, and based on the representations of the
Parties that discovery in this case will involve confidential documents or information the public
disclosure of which will cause harm to the producing person and/or third party to whom a duty of
confidentiality is owed, and to protect against injury caused by dissemination of confidential
documents and information, this Court finds good cause for issuance of an appropriately tailored
confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that any person subject to this Protective 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 Protective Order—shall adhere to the following terms:
Discovery Materials May Be Designated as Confidential
1.

Any person subject to this Protective Order who receives from any other person

subject to this Protective Order any “Discovery Material” (i.e., information of any kind produced
or disclosed pursuant to and in course of discovery in this action) that is designated as
“Confidential” pursuant to the terms of this Protective Order (hereinafter “Confidential Discovery
Material”) shall not disclose such Confidential Discovery Material to anyone else except as
expressly permitted hereunder.
2.

The person producing any given Discovery Material may designate as Confidential

such material that the designating Party deems to constitute confidential or proprietary data,
business information, and/or research, development, personnel, commercial or financial
information, including:
(a)

previously nondisclosed financial information (including without limitation
profitability reports or estimates, percentage fees, design fees, royalty rates,
minimum guarantee payments, sales reports, and sale margins);

(b)

previously nondisclosed confidential business ownership information;
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3.

(c)

previously nondisclosed business plans, product development information,
marketing plans, or other proprietary information;

(d)

any information of a personal or intimate nature regarding any individual;
or

(e)

any other category of information hereinafter given confidential status by
the Court.

With respect to the Confidential portion of any Discovery Material other than

deposition transcripts and exhibits, the producing person or that person’s counsel may designate
such material or the confidential portion thereof as “Confidential” by stamping or otherwise clearly
marking as “Confidential” the material in a manner that will not interfere with legibility or
audibility.
4.

With respect to deposition transcripts, a producing person or that person’s counsel

may designate such portion as Confidential either by (a) indicating on the record during the
deposition that a question calls for Confidential information, in which case the reporter will bind
the transcript of the designated testimony (consisting of question and answer) in a separate volume
and mark it as “Confidential Information Governed by Protective Order”; or (b) notifying the
reporter and all counsel of record, in writing, within 30 days after a deposition has concluded, of
the specific pages and lines of the transcript and/or the specific exhibits that are to be designated
Confidential, in which case all counsel receiving the transcript will be responsible for marking the
copies of the designated transcript or exhibit (as the case may be), in their possession or under their
control as directed by the producing person or that person’s counsel by the reporter. During the
30-day period following the conclusion of a deposition, the entire deposition transcript will be
treated as if it had been designated Confidential.
5.

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

Discovery Material (or some portion[s] thereof) that she, he, or it had previously produced without
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limitation should be designated as Confidential, she, he, or it may so designate by so apprising all
recipients of the Discovery Material in writing, and thereafter such designated Discovery Material
or portion(s) thereof will thereafter be deemed to be and treated as Confidential under the terms of
this Protective Order. No Party shall be found to have violated this Order for failing to maintain
the confidentiality of material during a time when that material has not been designated
Confidential, even where the failure to so designate was inadvertent and where the material is
subsequently designated Confidential.
Who May Receive Confidential Discovery Material
6.

No person subject to this Protective Order other than the producing person shall

disclose any of the Discovery Material designated by the producing person as Confidential to any
other person whomsoever, except to:
(a)

the Parties to this action, their insurers, and counsel to their insurers, but
only insofar as reasonably necessary for the prosecution or defense of this
Action;

(b)

counsel retained specifically for this action, including any paralegal, clerical
and other assistant employed by such counsel and assigned to this matter;

(c)

outside vendors or service providers (such as copy-service providers and
document-management consultants, graphic production services or other
litigation support services) that counsel hire and assign to this matter,
including computer service personnel performing duties in relation to a
computerized litigation system, and who sign a Non-Disclosure Agreement
in the form annexed as Exhibit A hereto;

(d)

any mediator or arbitrator that the Parties engage in this matter or that this
Court appoints, provided such person has first executed a Non-Disclosure
Agreement in the form annexed as Exhibit A hereto;

(e)

as to any document, its author, its addressee, and any other person indicated
on the face of the document as having received a copy;

(f)

any witness who counsel for a Party in good faith believes may be called to
testify at trial or deposition in this action, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto;
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7.

(g)

any person retained by a Party to serve as an expert witness or otherwise
provide specialized advice to counsel in connection with this action,
provided such person has first executed a Non-Disclosure Agreement in the
form annexed as Exhibit A hereto;

(h)

stenographers engaged to transcribe depositions conducted in this action;
and

(i)

this Court, including any appellate court, and the court reporters and support
personnel for the same.

Prior to any disclosure of any Confidential Discovery Material to any person

referred to in subparagraphs 6(c), 6(d), 6(f) or 6(g) above, such person shall be provided by counsel
with a copy of this Protective Order and shall sign a Non-Disclosure Agreement in the form
annexed as Exhibit A hereto stating that that person has read this Protective Order and agrees to
be bound by its terms. Said counsel shall retain each signed Non-Disclosure Agreement and
produce it upon written request. Whether or not they sign a Non-Disclosure Agreement, all
persons who receive Discovery Material (including but not limited to those who receive such
material pursuant to subparagraph 6(a)) may use such material for only this case—and may not
use such material for any other purpose (per Paragraph 11 below).
Disputes and Additional Limits on Disclosure
8.

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 with
particularity the grounds of the objection. If the Parties cannot reach agreement promptly, counsel
for all Parties will address their dispute to this Court in accordance with Paragraph II of this Court’s
Individual Practices.
9.

Any Party who requests additional limits on disclosure (such as “attorneys’ eyes

only” in extraordinary circumstances) may at any time prior to the trial of this action serve upon
counsel for the receiving Party a written notice stating with particularity the grounds for the
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request. If the Parties cannot reach agreement promptly, counsel for all Parties will address their
dispute to this Court in accordance with Paragraph II of this Court’s Individual Practices. Until
any dispute under this paragraph is resolved, the Discovery Material whose designation under this
paragraph is in dispute shall be treated consistent with the disclosing Party’s request.
10.

A Party may be requested to produce Discovery Material that is subject to

contractual or other obligations of confidentiality owed to a third party. Within two business days
of receiving the request, the receiving Party subject to such obligation shall inform the third party
of the request and that the third party may seek a protective order or other relief from this Court.
If neither the third party nor the receiving Party seeks a protective order or other relief from this
Court within 21 days of that notice, the receiving Party shall produce the information responsive
to the discovery request but may affix the appropriate controlling designation.
Disclosure and Filing of Confidential Discovery Material
11.

Recipients of Confidential Discovery Material under this Protective Order may use

such material solely for the prosecution and defense of this action and any appeals thereto, and
specifically (and by way of example and not limitations) may not use Confidential Discovery
Material for any business, commercial, or competitive purpose. Nothing contained in this
Protective Order, however, will affect or restrict the rights of any person with respect to its own
documents or information produced in this action. Nor does anything contained in this Protective
Order limit or restrict the rights of any person to use or disclose information or material obtained
independently from and not through or pursuant to the Federal Rules of Civil Procedure.
12.

Nothing in this Protective Order will prevent any person subject to it from

producing any Confidential Discovery Material in its possession in response to a lawful subpoena
or other compulsory process, or if required to produce by law or by any government agency having

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jurisdiction, provided, however, that such person receiving a request, will provide written notice
to the producing person before disclosure and as soon as reasonably possible, and, if permitted by
the time allowed under the request, at least 10 days before any disclosure. Upon receiving such
notice, the producing person will have the right to oppose compliance with the subpoena, other
compulsory process, or other legal notice if the producing person deems it appropriate to do so.
13.

All persons seeking to file redacted documents or documents under seal with the

Court shall follow Paragraph III(E) of this Court’s Individual Practices. No person may file with
the Court redacted documents or documents under seal without first seeking leave to file such
papers. All persons producing Confidential Discovery Material are deemed to be on notice that the
Second Circuit puts limitations on the documents or information that may be filed in redacted form
or under seal and that the Court retains discretion not to afford confidential treatment to any
Confidential Discovery Material submitted to the Court or presented in connection with any
motion, application or proceeding that may result in an order and/or decision by the Court unless
it is able to make the specific findings required by law in order to retain the confidential nature of
such material. Notwithstanding its designation, there is no presumption that Confidential
Discovery Material will be filed with the Court under seal. The Parties will use their best efforts
to minimize such sealing.
14.

All 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
or supporting or refuting any motion for summary judgment, even if such material has previously
been sealed or designated as Confidential.
15.

Any Party filing a motion or any other papers with the Court under seal shall also

publicly file a redacted copy of the same, via the Court’s Electronic Case Filing system, that redacts

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only the Confidential Discovery Material itself, and not text that in no material way reveals the
Confidential Discovery Material.
16.

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

Confidential shall take all due precautions to prevent the unauthorized or inadvertent disclosure of
such material.
17.

Any Personally Identifying Information (“PII”) (e.g., social security numbers,

financial account numbers, passwords, and information that may be used for identity theft)
exchanged in discovery shall be maintained by the persons who receive such information and are
bound by this Protective Order in a manner that is secure and confidential. In the event that the
person receiving PII experiences a data breach, she, he, or it shall immediately notify the producing
person of the same and cooperate with the producing person to address and remedy the breach.
Nothing herein shall preclude the producing person from asserting legal claims or constitute a
waiver of legal rights or defenses in the event of litigation arising out of the receiving person’s
failure to appropriately protect PII from unauthorized disclosure.
Fed. R. Evid. 502 Protection
18.

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

subject to a claim of attorney-client privilege, attorney work product protection, or other privilege
or immunity from discovery (“Inadvertently Disclosed Information”), pursuant to Federal Rule of
Evidence 502(d), such disclosure shall not constitute or be deemed a waiver or forfeiture of any
claim of privilege, work product protection, or other privilege or immunity from discovery with
respect to the Inadvertently Disclosed Information and its subject matter.
19.

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 (other than portions of such material of back-up tapes or other similar archived
material, which will be destroyed in accordance with standard retention policies and otherwise
maintained in accordance with the Protective Order until such time as it is destroyed), and provide
a certification of counsel that all such information has been returned or destroyed (except as
provided herein).
20.

Within five business days of the notification that such Inadvertently Disclosed

Information has been returned or destroyed (excepted as provided in the preceding paragraph), the
disclosing party shall produce a privilege log with respect to the Inadvertently Disclosed
Information.
21.

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.
22.

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.
Survival of this Order
23.

This Protective Order shall survive the termination of the litigation. Within 30 days

of the final disposition of this action, all Discovery Material designated as “Confidential,” and all
copies thereof, shall be promptly returned to the producing person, or, upon permission of the
producing person, destroyed.
24.

All persons subject to this Protective Order acknowledge that willful violation of

this Protective Order could subject them to punishment for contempt of Court. This Court shall

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retain jurisdiction over all persons subject to this Protective Order to the extent necessary to
enforce any obligations arising hereunder or to impose sanctions for any contempt thereof.
25.

This Order may be modified, amended or vacated by further order of the Court

upon the motion of any Party.
SO STIPULATED AND AGREED:
By: /s/ Hallie B. Levin

By: /s/ Nicholas Laird (e-signed with consent)

Hallie B. Levin
Sara E. Hershman
7 World Trade Center
250 Greenwich Street
New York, New York 10007
(t) 212-230-8800
(f) 212-230-8888
[e-mail]
[e-mail]

Nicholas Laird
Robert E. Shapiro
Maile H. Solís (admitted pro hac vice)
Thomas M. Williams (admitted pro hac vice)
BARACK FERRAZZANO KIRSCHBAUM
& NAGELBERG LLP
200 West Madison Street, Suite 3900
Chicago, IL 60606
Ph: [phone]
Fx: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Michael J. Summersgill (admitted pro hac
vice)
Joseph J. Mueller (admitted pro hac vice)
Jason Liss (admitted pro hac vice)
Tess Ambrose Foley (admitted pro hac vice)
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
(t) 617-526-6000
(f) 617-526-5000
[e-mail]
[e-mail]
[e-mail]
[e-mail]

- and Jason M. Drangel (JD 7204)
EPSTEIN DRANGEL LLP
60 East 42nd Street, Suite 2520
New York, NY 10165
[phone]
[e-mail]

Counsel for Plaintiff Walker Wear LLC

Counsel for Defendants Off-White LLC, OffWhite Operating Soho LLC, Saks Fifth Avenue
LLC, and Saks Incorporated

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SO ORDERED.

Stewart D. Aaron, U.S.M.J.
Dated:

New York, New York
August , 2022

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EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------x
:
:
WALKER WEAR LLC,
: Civil No. 21-cv-7073-LTS-SDA
:
Plaintiff,
: NON-DISCLOSURE
: AGREEMENT
v.
:
:
OFF-WHITE LLC, OFF-WHITE
:
OPERATING SOHO LLC, SAKS FIFTH
:
AVENUE LLC, and SAKS
:
INCORPORATED,
:
:
Defendants.
:
-------------------------------x
I, _____________________________, 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 either return all discovery information to the party or attorney
from whom I received it, or upon permission of the producing party, destroy such discovery
information. By acknowledging these obligations under the Protective Order, I 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.

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Name:
Job Title:
Employer:
Business Address:

Date:
Signature

2