Kater v. Churchill Downs Incorporated

Filing 248

STIPULATION AND ORDER re Parties' 247 Stipulation re Agreed Rider to Protective Order Regarding the Use and Disclosure of Discovery Produced by Nonparty Facebook, Inc.. Signed by Judge Robert S. Lasnik. (LH)

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 8 CHERYL KATER and SUZIE KELLY, individually and on behalf of all others similarly situated, 9 Plaintiffs, 10 11 12 13 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 FACEBOOK, INC. CHURCHILL DOWNS INCORPORATED, a Kentucky corporation, and BIG FISH GAMES, INC., a Washington corporation, 14 Defendants. 15 16 17 MANASA THIMMEGOWDA, individually and on behalf of all others similarly situated, 18 19 20 21 22 23 24 25 26 Plaintiff, v. BIG FISH GAMES, INC., a Washington corporation; ARISTOCRAT TECHNOLOGIES INC., a Nevada corporation; ARISTOCRAT LEISURE LIMITED, an Australian corporation; and CHURCHILL DOWNS INCORPORATED, a Kentucky corporation, No. 19-cv-00199-RSL STIPULATION AND ORDER RE AGREED RIDER TO PROTECTIVE ORDER REGARDING THE USE AND DISCLOSURE OF DISCOVERY PRODUCED BY NONPARTY FACEBOOK, INC. Defendants. 27 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: 206.682.5600 • Fax: 206.682.2992 1 This agreement is entered into between and among nonparty Facebook, Inc. (“Facebook”) 2 and the parties to the two actions captioned above, Kater et al. v. Churchill Downs Incorporated, 3 et al., No. C15-0612-RSL (the “Kater Action”) and Thimmegowda v. Big Fish Games, et al., No. 4 C19-0199-RSL (the “Thimmegowda Action” and, together with the Kater Action, the “Actions”), 5 specifically: Kater Action plaintiffs Cheryl Kater and Suzie Kelly; Thimmegowda Action plaintiff 6 Manasa Thimmegowda (collectively with Ms. Kater and Ms. Kelly, “Plaintiffs”); Kater Action 7 defendants Churchill Downs Incorporated and Big Fish Games, Inc.; and Thimmegowda Action 8 defendants Big Fish Games, Inc., Aristocrat Technologies, Inc., and Churchill Downs Incorporated 9 (“Defendants,” and collectively with Plaintiffs, the “Parties”). The Parties and Facebook anticipate 10 that Facebook will produce documents in this action that contain sensitive information that is 11 necessary to provide notice of the Class Action Settlement Agreement to members of the 12 Settlement Class because Defendants do not possess this information. This agreement is intended 13 to supplement the protective ordered entered by the Court on March 26, 2020 (ECF No. 192- 14 1) (“Protective Order”). 15 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good 16 cause for the following Agreed Rider To Protective Order Regarding The Use And Disclosure 17 Of Discovery Produced By Nonparty Facebook, Inc. (“Rider”). 18 PURPOSES AND LIMITATIONS 19 Facebook Protected Material designated under the terms of this Rider shall be used by the 20 Parties solely for the purpose of providing notice to and verifying and paying the recovery amount 21 owed to each member of the Settlement Class. Facebook Protected Material shall not be used 22 directly or indirectly for any other purpose whatsoever. 23 No Facebook Protected Material provided by Facebook to the Class Action Administrator 24 under the terms of this Rider may be shared with any of the Parties, unless specifically authorized 25 by this Rider. 26 27 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: 206.682.5600 • Fax: 206.682.2992 1 2 3 It is the intention of Facebook and the Parties that this Rider will protect all materials produced by Facebook in the Actions unless otherwise specified. DEFINITIONS 4 5 “Class Action Administrator” means Angeion Group, acting as class action administrator to effect the Class Action Settlement Agreement entered. 6 7 “Class Action Settlement Agreement” means the document filed at ECF No. 218-1 in the Kater Action. 8 “Outside Counsel” means (i) outside counsel who appear on the pleadings as 9 counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is reasonably 10 necessary to disclose the information for this litigation. 11 12 “Facebook Protected Material” means any discovery produced by Facebook in the Actions. 13 14 15 “Settlement Class” has the meaning provided in the Class Action Settlement Agreement. COMPUTATION OF TIME 16 The computation of any period of time prescribed or allowed by this Order shall 17 be governed by the provisions for computing time set forth in Federal Rules of Civil 18 Procedure 6. 19 SCOPE 20 The protections conferred by this Rider cover not only the Facebook Protected 21 Material governed by this Rider as addressed herein, but also any information copied or extracted 22 therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, 23 conversations, or presentations by Parties or their counsel in court or in other settings that might 24 reveal Facebook Protected Material. 25 Nothing in this Rider shall prevent or restrict Facebook’s own disclosure or use of 26 its own Facebook Protected Material for any purpose, and nothing in this Rider shall preclude 27 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: 206.682.5600 • Fax: 206.682.2992 1 Facebook from showing its Facebook Protected Material to an individual who prepared the 2 Facebook Protected Material. 3 DURATION 4 Even after the termination of this case, the confidentiality obligations imposed by 5 this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order 6 otherwise directs, subject to the Final Disposition clause herein. 7 ACCESS TO FACEBOOK PROTECTED MATERIAL 8 Basic Principles. All Facebook Protected Material shall be used solely for the 9 purpose of providing notice to and verifying and paying the recovery amount owed to members of 10 the Settlement Class, and not for any other purpose whatsoever, including without limitation any 11 other litigation, patent prosecution or acquisition, patent reexamination or reissue proceedings, or 12 any business or competitive purpose or function. Facebook Protected Material shall not be 13 provided, distributed, disclosed, or made available to anyone except as expressly provided in this 14 Rider. 15 Secure Storage, No Export. Facebook Protected Material must be stored and 16 maintained by a Receiving Party at a location in the United States and in a secure manner that 17 ensures that access is limited to the persons authorized under this Rider. To ensure compliance 18 with applicable United States Export Administration Regulations, Facebook Protected Material 19 may not be exported outside the United States or released to any foreign national (even if within 20 the United States). 21 Legal Advice Based on Facebook Protected Material. Nothing in this Rider shall 22 be construed to prevent counsel from advising their clients with respect to this case based in whole 23 or in part upon Facebook Protected Materials, provided counsel does not disclose the Facebook 24 Protected Material itself except as provided in this Rider. 25 26 Limitations. Nothing in this Rider shall restrict in any way Facebook’s use or disclosure of its own Facebook Protected Material. 27 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: 206.682.5600 • Fax: 206.682.2992 1 Designation. For the avoidance of doubt, in all circumstances not specifically 2 addressed by this Rider, all Facebook Protected Material shall be treated as if designated 3 “CONFIDENTIAL” under the Protective Order regardless of whether the Facebook Protected 4 Material has been stamped or marked in accordance with that Order. 5 USE OF PROTECTED MATERIAL 6 It is Facebook’s and the Parties’ intention that Facebook will produce Facebook 7 Protected Materials directly to the Class Action Administrator, with no production to any of the 8 Parties. 9 Unless otherwise ordered by the Court or authorized through the prior written 10 consent of Facebook, the Class Action Administrator may disclose Facebook Protected Materials 11 only to those members of the Class Action Administrator’s staff, or to any copying, clerical or 12 other support services working at the direction of the Class Action Administrator, to whom 13 disclosure is reasonably necessary in order to provide notice to and/or to verify and pay the 14 recovery amount owed to members of the Settlement Class, provided that each such person to 15 whom disclosure is made must first agree to be bound by the provisions of this Rider by signing 16 a copy of Exhibit A. 17 Nothing in the foregoing paragraph is intended to restrict the Class Action 18 Administrator from disclosing to a member of the Settlement Class any Facebook Protected 19 Material that specifically relates to that individual. 20 Certain Members of the Settlement Class: Thirty days prior to the claims deadline, 21 and subject to Facebook’s prior written consent (such consent not to be unreasonably withheld), 22 the Class Action Administrator shall furnish to Counsel for Plaintiffs the contact information for 23 and Lifetime Spending Amount associated with each Settlement Class Member who (1) has a 24 Lifetime Spending Amount of greater than or equal to $25,000, and (2) has not yet filed a claim. 25 26 27 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: 206.682.5600 • Fax: 206.682.2992 1 For the avoidance of doubt, no Settlement Class Member contact information or 2 Lifetime Spending Amounts shall be provided to Counsel for Plaintiffs unless Counsel for 3 Plaintiffs have been appointed by the Court as Class Counsel. 4 Any contact information disclosed to counsel for Plaintiffs pursuant to this section 5 shall be used solely for the purpose of providing notice of the Class Action Settlement Agreement 6 to members of the Settlement Class, and counsel for Plaintiffs shall disclose Contact Information 7 only to counsel’s staff, or to any copying, clerical or other support services working at the direction 8 of counsel for Plaintiffs, to whom disclosure is reasonably necessary to provide notice to the 9 member. All Contact Information relating to a member of the Settlement Class shall be destroyed 10 by counsel for Plaintiffs upon confirmation that the member has received actual notice of the Class 11 Action Settlement. 12 13 14 15 CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL This Rider is intended to provide no mechanism to the Parties through which they can challenge the designation or protected status of Facebook Protected Materials. SUBPOENAS OR COURT ORDERS 16 If at any time Facebook Protected Material is subpoenaed by any court, arbitral, 17 administrative, or legislative body, the Party to whom the subpoena or other request is directed 18 shall immediately give prompt written notice thereof to Facebook and to its counsel and shall 19 provide Facebook with an opportunity to move for a protective order regarding the production of 20 Facebook Protected Materials implicated by the subpoena. 21 FILING PROTECTED MATERIAL 22 Absent written permission from Facebook or a court Order secured after 23 appropriate notice to all interested persons, the Parties may not file or disclose in the public record 24 any Facebook Protected Material. 25 26 27 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: 206.682.5600 • Fax: 206.682.2992 1 INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER 2 In the event of a disclosure of any Facebook Protected Material pursuant to this 3 Rider to any person or persons not authorized to receive such disclosure under this Rider, or in any 4 circumstance not authorized under this Rider, the Party responsible for having made such 5 disclosure, and each Party with knowledge thereof, must immediately notify counsel for Facebook 6 (a) in writing, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, 7 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 8 this Order, and (d) request such person or persons execute the “Acknowledgment and Agreement 9 to Be Bound” that is attached hereto as Exhibit A. 10 Unauthorized or inadvertent disclosure does not change the status of Facebook 11 Protected Material or waive the right to hold the disclosed document or information as Protected. 12 FINAL DISPOSITION 13 Not later than ninety (90) days after closure of the Final Disposition of this case, 14 each Party and the Class Action Administrator shall return all Discovery Material of a Producing 15 Party to the respective outside counsel of the Producing Party or destroy such Material, at the 16 option of Facebook. For purposes of this Order, “Final Disposition” occurs after an order, 17 mandate, or dismissal finally terminating the above-captioned action with prejudice, including all 18 appeals. 19 All Parties that have received any such Discovery Material, as well as the Class 20 Action Administrator, shall certify in writing that all such materials have been returned to counsel 21 for Facebook or destroyed. 22 MISCELLANEOUS 23 Termination of Matter and Retention of Jurisdiction. The Parties and Facebook 24 agree that the terms of this Rider shall survive and remain in effect after the Final Determination 25 of the Actions. The Court shall retain jurisdiction after Final Determination of the matter to hear 26 and resolve any disputes arising out of this Rider. 27 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: 206.682.5600 • Fax: 206.682.2992 1 Successors. This Rider shall be binding upon Facebook and the Parties hereto, their 2 attorneys, and their successors, executors, personal representatives, administrators, heirs, legal 3 representatives, assigns, subsidiaries, divisions, employees, agents, retained consultants and 4 experts, and any persons or organizations over which they have direct control. 5 Discovery Rules Remain Unchanged. Nothing herein shall alter or change in any 6 way the discovery provisions of the Federal Rules of Civil Procedure, the Local Rules for the 7 United States District Court for the Western District of Washington, or the Court’s own orders. 8 Identification of any individual pursuant to this Rider does not make that individual available for 9 deposition or any other form of discovery outside of the restrictions and procedures of the Federal 10 Rules of Civil Procedure, the Local Rules for the United States District Court for Western District 11 of Washington, or the Court’s own orders. 12 13 14 * * * Respectfully submitted, 15 16 Dated: November 2, 2020 17 18 19 20 21 22 23 By: /s/ Todd Logan Rafey S. Balabanian* rbalabanian@edelson.com Todd Logan* tlogan@edelson.com Brandt Silver-Korn* bsilverkorn@edelson.com EDELSON PC 123 Townsend Street, Suite 100 San Francisco, California 94107 Tel: 415.212.9300/Fax: 415.373.9435 By: /s/ Cecily C. Shiel TOUSLEY BRAIN STEPHENS PLLC Cecily C. Shiel, WSBA #50061 cshiel@tousley.com 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101-4416 Tel: 206.682.5600 24 25 26 27 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: 206.682.5600 • Fax: 206.682.2992 Plaintiffs’ Attorneys and proposed Class Counsel 1 *Admitted pro hac vice 2 3 Dated: October 30, 2020 4 5 6 7 Attorneys for Defendants Aristocrat Technologies, Inc., Aristocrat Leisure Limited, and Churchill Downs Incorporated 8 9 Emily Johnson Henn (pro hac vice) ehenn@cov.com Lindsey Barnhart (pro hac vice) lbarnhart@cov.com COVINGTON & BURLING LLP 3000 El Camino Real 5 Palo Alto Square Palo Alto, CA 94306 Telephone: (650) 632-4700 10 11 12 13 14 Gary Rubman (pro hac vice) grubman@cov.com COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, D.C. 20001 Telephone: (202) 662-6000 15 16 17 18 Matthew Q. Verdin (pro hac vice) mverdin@cov.com David Watnick (pro hac vice pending) dwatnick@cov.com COVINGTON & BURLING LLP Salesforce Tower 415 Mission Street, Suite 5400 Telephone: (415) 591-7065 19 20 21 22 23 Attorneys for Defendants Big Fish Games, Inc., Aristocrat Technologies, Inc. and Aristocrat Leisure Limited 24 25 By: /s/_Mark Parris______________________ Mark Parris (Bar No. 13870) mparris@orrick.com Paul F. Rugani (Bar No. 38664) prugani@orrick.com ORRICK HERRINGTON & SUTCLIFFE LLP 701 5th Avenue, Suite 5600 Seattle, WA 98104 Telephone: (206) 839-4320 Dated: November 2, 2020 26 By: /s/ Lauren J. Pomeroy Michael G. Rhodes (Cal. Bar No. 116127) 27 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: 206.682.5600 • Fax: 206.682.2992 (rhodesmg@cooley.com) Whitty Somvichian (Cal. Bar No. 194463) (wsomvichian@cooley.com) Lauren J. Pomeroy (Cal. Bar No. 291604) (lpomeroy@cooley.com) COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 1 2 3 4 5 6 7 Attorneys for Nonparty FACEBOOK, INC. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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: 206.682.5600 • Fax: 206.682.2992 1 2 ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED. 3 4 5 Dated this 2nd day of November, 2020. 6 ROBERT S. LASNIK UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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: 206.682.5600 • Fax: 206.682.2992 1 EXHIBIT A 2 I, , acknowledge and declare that I have received a 3 copy of the Agreed Rider To Protective Order Regarding The Use And Disclosure Of 4 Discovery Produced By Nonparty Facebook, Inc. (“Rider”) in Kater et al. v. Churchill Downs 5 Incorporated, et al., No. C15-0612-RSL and Thimmegowda v. Big Fish Games, et al., NO. C19- 6 0199-RSL, United States District Court, District of Washington, Western District. Having read 7 and understood the terms of the Rider, I agree to be bound by the terms of the Rider and consent 8 to the jurisdiction of said Court for the purpose of any proceeding to enforce the terms of the 9 Rider. 10 Name of individual: 11 Present occupation/job description: 12 13 14 15 Name of Company or Firm: Address: 16 17 Dated: 18 19 [Signature] 20 21 22 23 24 25 26 27 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: 206.682.5600 • Fax: 206.682.2992

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