Kater v. Churchill Downs Incorporated

Filing 246

STIPULATION AND ORDER re Parties' 233 Stipulation Re Agreed Rider to Protective Order Regarding the Use and Disclosure of Discovery Produced by Nonparty Apple Inc.. Signed by Judge Robert S. Lasnik. (LH)

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 1 of 13

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The Honorable Robert S. Lasnik

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CHERYL KATER and SUZIE KELLY,
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situated,
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Plaintiffs,
v.

No. 15-cv-00612-RSL
STIPULATION AND ORDER RE
AGREED RIDER TO PROTECTIVE
ORDER REGARDING THE USE AND
DISCLOSURE OF DISCOVERY
PRODUCED BY NONPARTY APPLE
INC.

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CHURCHILL DOWNS INCORPORATED, a
13 Kentucky corporation, and BIG FISH GAMES,
INC., a Washington corporation.
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Defendants.

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17 MANASA THIMMEGOWDA, individually
and on behalf of all others similarly situated,
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Plaintiff,
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v.

21 BIG FISH GAMES, INC., a Washington
corporation; ARISTOCRAT
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TECHNOLOGIES INC., a Nevada
23 corporation; ARISTOCRAT LEISURE
24 LIMITED, an Australian corporation; and
CHURCHILL DOWNS INCORPORATED, a
25 Kentucky corporation,
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No. 19-cv-00199-RSL
STIPULATION AND ORDER RE
AGREED RIDER TO PROTECTIVE
ORDER REGARDING THE USE AND
DISCLOSURE OF DISCOVERY
PRODUCED BY NONPARTY APPLE
INC.

Defendants.
Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - i

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 2 of 13

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This agreement is entered into between and among nonparty Apple Inc. (“Apple”) and the
parties to the two actions captioned above, Kater et al. v. Churchill Downs Incorporated, et al.,
No. C15-0612-RSL (the “Kater Action”) and Thimmegowda v. Big Fish Games, et al., No. C19-

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0199-RSL (the “Thimmegowda Action” and, together with the Kater Action, the “Actions”),

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specifically: Kater Action plaintiffs Cheryl Kater and Suzie Kelly; Thimmegowda Action plaintiff

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Manasa Thimmegowda (collectively with Ms. Kater and Ms. Kelly, “Plaintiffs”); Kater Action

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defendants Churchill Downs Incorporated and Big Fish Games, Inc.; and Thimmegowda Action

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defendants Big Fish Games, Inc., Aristocrat Technologies, Inc., and Churchill Downs Incorporated
(“Defendants,” and collectively with Plaintiffs, the “Parties”). The Parties and Apple anticipate
that Apple will produce documents in this action that contain sensitive consumer information.

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This agreement is intended to supplement the protective order entered by the Court on May 5,

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2020 (ECF Nos. 192-1 and 213 in the Kater Action) (“Protective Order”).

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good
cause for the following Agreed Rider To Protective Order Regarding The Use And Disclosure
Of Discovery Produced By Nonparty Apple Inc. (“Rider”).

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PURPOSES AND LIMITATIONS

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Apple Protected Material designated under the terms of this Rider shall be used by the

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Parties solely for the purpose of providing notice to and verifying and paying the recovery amount

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owed to each member of the Settlement Class. Apple Protected Material shall not be used directly

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or indirectly for any other purpose whatsoever.

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No Apple Protected Material provided by Apple to the Class Action Administrator under
the terms of this Rider may be shared with any of the Parties, unless specifically authorized by this
Rider.
Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 1

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 3 of 13

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It is the intention of Apple and the Parties that this Rider will protect all materials produced
by Apple in the Actions unless otherwise specified.
DEFINITIONS
“Class Action Administrator” means Angeion Group, acting as class action

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administrator to effect the Class Action Settlement Agreement entered.

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“Class Action Settlement Agreement” means the document filed at ECF No. 218-1
in the Kater Action.

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“Outside Counsel” means (i) outside counsel who appear on the pleadings as
counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is reasonably
necessary to disclose the information for this litigation.
“Apple Protected Material” means any discovery produced by Apple in the

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Actions.

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“Settlement Class” has the meaning provided in the Class Action Settlement
Agreement.
COMPUTATION OF TIME

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The computation of any period of time prescribed or allowed by this Order shall
be governed by the provisions for computing time set forth in Federal Rule of Civil Procedure 6.
SCOPE
The protections conferred by this Rider cover not only the Apple Protected Material
governed by this Rider as addressed herein, but also any information copied or extracted therefrom,

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as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations,
or presentations by Parties or their counsel in court or in other settings that might reveal Apple
Protected Material.
Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 2

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 4 of 13

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Nothing in this Rider shall prevent or restrict Apple’s own disclosure or use of its
own Apple Protected Material for any purpose, and nothing in this Rider shall preclude Apple
from showing its Apple Protected Material to an individual who prepared the Apple Protected
Material.
DURATION

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Even after the termination of this case, the confidentiality obligations imposed by

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this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order

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otherwise directs, subject to the Final Disposition clause herein.
ACCESS TO APPLE PROTECTED MATERIAL
Basic Principles. All Apple Protected Material shall be used solely for the purpose

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of providing notice to and verifying and paying the recovery amount owed to members of the

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Settlement Class, and not for any other purpose whatsoever, including without limitation any other

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litigation, patent prosecution or acquisition, patent reexamination or reissue proceedings, or any

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business or competitive purpose or function. Apple Protected Material shall not be provided,
distributed, disclosed, or made available to anyone except as expressly provided in this Rider.

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Secure Storage, No Export. Apple Protected Material must be stored and

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maintained by a Receiving Party at a location in the United States and in a secure manner that

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ensures that access is limited to the persons authorized under this Rider. To ensure compliance

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with applicable United States Export Administration Regulations, Apple Protected Material may

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not be exported outside the United States or released to any foreign national (even if within the

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United States).
Legal Advice Based on Apple Protected Material. Nothing in this Rider shall be
construed to prevent counsel from advising their clients with respect to this case based in whole
Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 3

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 5 of 13

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or in part upon Apple Protected Materials, provided counsel does not disclose the Apple Protected
Material itself except as provided in this Rider.
Limitations.

Nothing in this Rider shall restrict in any way Apple’s use or

disclosure of its own Apple Protected Material.

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Designation. For the avoidance of doubt, in all circumstances not specifically

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addressed by this Rider, all Apple Protected Material shall be treated as if designated

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“CONFIDENTIAL” under the Protective Order regardless of whether the Apple Protected

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Material has been stamped or marked in accordance with that Order.
USE OF PROTECTED MATERIAL
It is Apple’s and the Parties’ intention that Apple will produce Apple Protected
Materials directly to the Class Action Administrator, with no production to any of the Parties.

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Unless otherwise ordered by the Court or authorized through the prior written

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consent of Apple, the Class Action Administrator may disclose Apple Protected Materials only to

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those members of the Class Action Administrator’s staff, or to any copying, clerical or other
support services working at the direction of the Class Action Administrator, to whom disclosure

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is reasonably necessary in order to provide notice to and/or to verify and pay the recovery amount
owed to members of the Settlement Class, provided that each such person to whom disclosure is

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made must first agree to be bound by the provisions of this Rider by signing a copy of Exhibit A.

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Nothing in the foregoing paragraph is intended to restrict the Class Action

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Administrator from disclosing to a member of the Settlement Class any Apple Protected Material

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that specifically relates to that individual.
Certain Members of the Settlement Class: Thirty days prior to the claims deadline,
and subject to Apple’s prior written consent (such consent not to be unreasonably withheld), the
Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 4

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 6 of 13

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Class Action Administrator shall furnish to Counsel for Plaintiffs the contact information for and
Lifetime Spending Amount associated with each Settlement Class Member who (1) has a Lifetime
Spending Amount of greater than or equal to $25,000, and (2) has not yet filed a claim.

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For the avoidance of doubt, no Settlement Class Member’s contact information or

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Lifetime Spending Amounts shall be provided to Counsel for Plaintiffs unless Counsel for

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Plaintiffs have been appointed by the Court as Class Counsel.

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Any contact information disclosed to counsel for Plaintiffs pursuant to this section
shall be used solely for the purpose of providing notice of the Class Action Settlement Agreement
to members of the Settlement Class, and counsel for Plaintiffs shall disclose Contact Information
only to counsel’s staff, or to any copying, clerical or other support services working at the direction

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of counsel for Plaintiffs, to whom disclosure is reasonably necessary to provide notice to the

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member. All Contact Information relating to a member of the Settlement Class shall be destroyed

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by counsel for Plaintiffs upon confirmation that the member has received actual notice of the Class

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Action Settlement.
CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL

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This Rider is intended to provide no mechanism to the Parties through which they
can challenge the designation or protected status of Apple Protected Materials.
SUBPOENAS OR COURT ORDERS

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If at any time Apple Protected Material is subpoenaed by any court, arbitral,

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administrative, or legislative body, the Party to whom the subpoena or other request is directed

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shall immediately give prompt written notice thereof to Apple and to its counsel and shall provide
Apple with an opportunity to move for a protective order regarding the production of Apple
Protected Materials implicated by the subpoena.
Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 5

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 7 of 13

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FILING PROTECTED MATERIAL
Absent written permission from Apple or a court Order secured after appropriate
notice to all interested persons, the Parties may not file or disclose in the public record any Apple
Protected Material.
INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER

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In the event of a disclosure of any Apple Protected Material pursuant to this Rider

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to any person or persons not authorized to receive such disclosure under this Rider, the Party

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responsible for having made such disclosure, and each Party with knowledge thereof, shall
immediately notify counsel for Apple and provide to such counsel all known relevant information
concerning the nature and circumstances of the disclosure. The responsible disclosing Party shall

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also promptly take all reasonable measures to retrieve the improperly disclosed Apple Protected

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Material and to ensure that no further or greater unauthorized disclosure and/or use thereof is made.

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Unauthorized or inadvertent disclosure does not change the status of Apple

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Protected Material or waive the right to hold the disclosed document or information as Protected.
FINAL DISPOSITION

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Not later than ninety (90) days after closure of the Final Disposition of this case,
each Party and the Class Action Administrator shall return all Discovery Material of a Producing

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Party to the respective outside counsel of the Producing Party or destroy such Material, at the

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option of Apple. For purposes of this Order, “Final Disposition” occurs after an order, mandate,

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or dismissal finally terminating the above-captioned action with prejudice, including all appeals.

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All Parties that have received any such Discovery Material, as well as the Class
Action Administrator, shall certify in writing that all such materials have been returned to counsel
for Apple or destroyed.
Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 6

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 8 of 13

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MISCELLANEOUS
Termination of Matter and Retention of Jurisdiction. The Parties and Apple agree
that the terms of this Rider shall survive and remain in effect after the Final Determination of the

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Actions. The Court shall retain jurisdiction after Final Determination of the matter to hear and

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resolve any disputes arising out of this Rider.

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Successors. This Rider shall be binding upon Apple and the Parties hereto, their

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attorneys, and their successors, executors, personal representatives, administrators, heirs, legal

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representatives, assigns, subsidiaries, divisions, employees, agents, retained consultants and
experts, and any persons or organizations over which they have direct control.
Modification by Court. This Order is subject to further court order based upon

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public policy or other considerations, and the Court may modify this Order sua sponte in the

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interests of justice. The United States District Court for the Western District of Washington is

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responsible for the interpretation and enforcement of this Order. All disputes concerning Apple

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Protected Material, however designated, produced under the protection of this Order shall be
resolved by the United States District Court for the Western District of Washington.

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Discovery Rules Remain Unchanged. Nothing herein shall alter or change in any way the
discovery provisions of the Federal Rules of Civil Procedure, the Local Rules for the United States

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District Court for the Western District of Washington, or the Court’s own orders. Identification

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of any individual pursuant to this Protective Order does not make that individual available for

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deposition or any other form of discovery outside of the restrictions and procedures of the Federal

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Rules of Civil Procedure, the Local Rules for the United States District Court for the Western
District of Washington, or the Court’s own orders.

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Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 7

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 9 of 13

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*

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Respectfully submitted,

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Dated: October 28, 2020

By: /s/ Todd Logan
Todd Logan*
[e-mail]
EDELSON PC
123 Townsend Street, Suite 100
San Francisco, California 94107
Tel: [phone]/Fax: [phone]

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By: /s/ Cecily C. Shiel
TOUSLEY BRAIN STEPHENS PLLC
Cecily C. Shiel, WSBA #50061
[e-mail]
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone]

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Class Counsel

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*Admitted pro hac vice

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Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 8

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 10 of 13

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DATED: September 29, 2020

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By: /s/ Mark Parris_______________________
Mark Parris (Bar No. 13870)
[e-mail]
Paul F. Rugani (Bar No. 38664)
[e-mail]
ORRICK HERRINGTON & SUTCLIFFE LLP
701 5th Avenue, Suite 5600
Seattle, WA 98104
Telephone: [phone]
Attorneys for Defendants Aristocrat
Technologies, Inc., Aristocrat Leisure Limited,
and Churchill Downs Incorporated

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Emily Johnson Henn (pro hac vice)
[e-mail]
Lindsey Barnhart (pro hac vice)
[e-mail]
COVINGTON & BURLING LLP
3000 El Camino Real
5 Palo Alto Square
Palo Alto, CA 94306
Telephone: [phone]

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Gary Rubman (pro hac vice)
[e-mail]
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
Washington, D.C. 20001
Telephone: [phone]

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Matthew Q. Verdin (pro hac vice)
[e-mail]
David Watnick (pro hac vice pending)
[e-mail]
COVINGTON & BURLING LLP
Salesforce Tower
415 Mission Street, Suite 5400
Telephone: [phone]

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Attorneys for Defendants Big Fish Games, Inc.,
Aristocrat Technologies, Inc. and Aristocrat
Leisure Limited

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Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 9

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 11 of 13

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Dated: October 28, 2020

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By: /s/ Tobias G. Snyder

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Tobias G. Snyder
LEWIS & LLEWELLYN LLP
601 Montgomery Street, Suite 2000
San Francisco, CA 94111
415-480-0663

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Attorney for Apple Inc

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Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 10

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 12 of 13

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ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED this 28th day of October, 2020.

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ROBERT S. LASNIK
UNITED STATES DISTRICT JUDGE

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Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 1

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]

Case 2:15-cv-00612-RSL Document 246 Filed 10/28/20 Page 13 of 13

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EXHIBIT A

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I,

, acknowledge and declare that I have received a

copy of the Agreed Rider To Protective Order Regarding The Use And Disclosure Of

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Discovery Produced By Nonparty Apple Inc. (“Rider”) in Kater et al. v. Churchill Downs
Incorporated, et al., No. C15-0612-RSL and Thimmegowda v. Big Fish Games, et al., NO. C19-

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0199-RSL, United States District Court, District of Washington, Western District. Having read

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and understood the terms of the Rider, I agree to be bound by the terms of the Rider and consent

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to the jurisdiction of said Court for the purpose of any proceeding to enforce the terms of the

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Rider.

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Name of individual:

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Present occupation/job description:

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Name of Company or Firm:

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Address:

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Dated:

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[Signature]

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Stipulation and Order
Case Nos. 15-CV-612, 19-CV-199 - 1

T OUSLEY B RAIN S TEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101-4416
Tel: [phone] • Fax: [phone]