The opinion
1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
2 Including Professional Corporations
SASCHA HENRY, Cal Bar No. 191914
3 ROBERT J. GUITE, Cal. Bar No. 244590
shenry@sheppardmullin.com
4 rguite@sheppardmullin.com
333 South Hope Street, 43rd Floor
5 Los Angeles, CA 90071-1422
Telephone: 213.620.1780
6 Facsimile: 213.620.1398
7 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
8 Including Professional Corporations
ABBY MEYER, Cal. Bar No. 294947
9 ameyer@sheppardmullin.com
650 Town Center Drive, Fourth Floor
10 Costa Mesa, California 92626-1993
Telephone: 714.513.5100
11 Facsimile: 714.513.5130
12 Attorneys for Defendant
Starbucks Corporation
13
14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16
17 TERESA ADAMS, individually and on Case No. 8:20-cv-00225-MCS-KES
behalf of all others similarly situated,
18 ORDER RE
Plaintiffs, STIPULATED PROTECTIVE
19 ORDER
v.
20
STARBUCKS CORPORATION, a Action Filed: March 16, 2016
21 Washington corporation, and Does 1- Trial Date: None Set
20, inclusive,
22
Defendants.
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27
1 1. A. PURPOSES AND LIMITATIONS
2 Discovery in this action is likely to involve production of confidential,
3 proprietary, or private information for which special protection from public
4 disclosure and from use for any purpose other than prosecuting this litigation may
5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
6 enter the following Stipulated Protective Order. The parties acknowledge that this
7 Order does not confer blanket protections on all disclosures or responses to
8 discovery and that the protection it affords from public disclosure and use extends
9 only to the limited information or items that are entitled to confidential treatment
10 under the applicable legal principles. The parties further acknowledge, as set forth
11 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
12 file confidential information under seal; Civil Local Rule 79-5 sets forth the
13 procedures that must be followed and the standards that will be applied when a
14 party seeks permission from the court to file material under seal.
15 B. GOOD CAUSE STATEMENT
16 This action is likely to involve recipe or ingredient information; pricing; sales
17 and/or cost data; consumer or market research and possibly other valuable research,
18 development, commercial, financial, technical and/or proprietary information for
19 which special protection from public disclosure and from use for any purpose other
20 than prosecution of this action is warranted. Such confidential and proprietary
21 materials and information consist of, among other things, confidential business or
22 financial information, information regarding confidential business practices, or
23 other confidential research, development, or commercial information, information
24 otherwise generally unavailable to the public, or which may be privileged or
25 otherwise protected from disclosure under state or federal statutes, court rules, case
26 decisions, or common law. Accordingly, to expedite the flow of information, to
27 facilitate the prompt resolution of disputes over confidentiality of discovery
1 confidential, to ensure that the parties are permitted reasonable necessary uses of
2 such material in preparation for and in the conduct of trial, to address their handling
3 at the end of the litigation, and serve the ends of justice, a protective order for such
4 information is justified in this matter. It is the intent of the parties that information
5 will not be designated as confidential for tactical reasons and that nothing be so
6 designated without a good faith belief that it has been maintained in a confidential,
7 non-public manner, and there is good cause why it should not be part of the public
8 record of this case.
9 2. DEFINITIONS
10 2.1 Action: United States District Court case entitled, Teresa Adams,
11 individually and on behalf of all others similarly situated v. Starbucks Corporation,
12 etc.; et al., Case No. 8:20-cv-00225-MCS-KES.
13 2.2 Challenging Party: a Party or Non-Party that challenges the
14 designation of information or items under this Order.
15 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
16 how it is generated, stored or maintained) or tangible things that qualify for
17 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
18 the Good Cause Statement.
19 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
20 their support staff).
21 2.5 Designating Party: a Party or Non-Party that designates information or
22 items that it produces in disclosures or in responses to discovery as
23 “CONFIDENTIAL.”
24 2.6 Disclosure or Discovery Material: all items or information, regardless
25 of the medium or manner in which it is generated, stored, or maintained (including,
26 among other things, testimony, transcripts, and tangible things), that are produced
27 or generated in disclosures or responses to discovery in this matter.
1 2.7 Expert: a person with specialized knowledge or experience in a matter
2 pertinent to the litigation who has been retained by a Party or its counsel to serve as
3 an expert witness or as a consultant in this Action.
4 2.8 House Counsel: attorneys who are employees of a party to this Action.
5 House Counsel does not include Outside Counsel of Record or any other outside
6 counsel.
7 2.9 Non-Party: any natural person, partnership, corporation, association, or
8 other legal entity not named as a Party to this action.
9 2.10 Outside Counsel of Record: attorneys who are not employees of a
10 party to this Action but are retained to represent or advise a party to this Action and
11 have appeared in this Action on behalf of that party or are affiliated with a law firm
12 which has appeared on behalf of that party, and includes support staff.
13 2.11 Party: any party to this Action, including all of its officers, directors,
14 employees, consultants, retained experts, and Outside Counsel of Record (and their
15 support staffs).
16 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
17 Discovery Material in this Action.
18 2.13 Professional Vendors: persons or entities that provide litigation support
19 services (e.g., photocopying, videotaping, translating, preparing exhibits or
20 demonstrations, and organizing, storing, or retrieving data in any form or medium)
21 and their employees and subcontractors.
22 2.14 Protected Material: any Disclosure or Discovery Material that is
23 designated as “CONFIDENTIAL.”
24 2.15 Receiving Party: a Party that receives Disclosure or Discovery
25 Material from a Producing Party.
26 3. SCOPE
27 The protections conferred by this Stipulation and Order cover not only
1 extracted from Protected Material; (2) all copies, excerpts, summaries, or
2 compilations of Protected Material; and (3) any testimony, conversations, or
3 presentations by Parties or their Counsel that might reveal Protected Material. Any
4 use of Protected Material at trial shall be governed by the orders of the trial judge.
5 This Order does not govern the use of Protected Material at trial.
6 4. DURATION
7 Even after final disposition of this litigation, the confidentiality obligations
8 imposed by this Order shall remain in effect until a Designating Party agrees
9 otherwise in writing or a court order otherwise directs. Final disposition shall be
10 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
11 with or without prejudice; and (2) final judgment herein after the completion and
12 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
13 including the time limits for filing any motions or applications for extension of time
14 pursuant to applicable law.
15 If this case proceeds to trial, all exhibits used at trial that were previously
16 designated as confidential or maintained pursuant to this protective order become
17 public and will be presumptively available to all members of the public, including
18 the press, unless compelling reasons supported by specific factual findings to
19 proceed otherwise are made to the trial judge in advance of the trial. See Kamakana
20 v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006)
21 (distinguishing “good cause” showing for sealing documents produced in discovery
22 from “compelling reasons” standard when merits-related documents are part of
23 court record).
24 Even after final disposition of this litigation, the confidentiality obligations
25 imposed by this Order shall remain in effect until a Designating Party agrees
26 otherwise in writing or a court order otherwise directs. Final disposition shall be
27 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
1 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
2 including the time limits for filing any motions or applications for extension of time
3 pursuant to applicable law.
4 5. DESIGNATING PROTECTED MATERIAL
5 5.1 Exercise of Restraint and Care in Designating Material for Protection.
6 Each Party or Non-Party that designates information or items for protection under
7 this Order must take care to limit any such designation to specific material that
8 qualifies under the appropriate standards. The Designating Party must designate for
9 protection only those parts of material, documents, items, or oral or written
10 communications that qualify so that other portions of the material, documents,
11 items, or communications for which protection is not warranted are not swept
12 unjustifiably within the ambit of this Order.
13 Mass, indiscriminate, or routinized designations are prohibited. Designations
14 that are shown to be clearly unjustified or that have been made for an improper
15 purpose (e.g., to unnecessarily encumber the case development process or to impose
16 unnecessary expenses and burdens on other parties) may expose the Designating
17 Party to sanctions.
18 If it comes to a Designating Party’s attention that information or items that it
19 designated for protection do not qualify for protection, that Designating Party must
20 promptly notify all other Parties that it is withdrawing the inapplicable designation.
21 5.2 Manner and Timing of Designations. Except as otherwise provided in
22 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
23 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
24 under this Order must be clearly so designated before the material is disclosed or
25 produced. Designation in conformity with this Order requires:
26 (a) for information in documentary form (e.g., paper or electronic
27 documents, but excluding transcripts of depositions or other pretrial or trial
1 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
2 contains protected material. If only a portion or portions of the material on a page
3 qualifies for protection, the Producing Party also must clearly identify the protected
4 portion(s) (e.g., by making appropriate markings in the margins). A Party or Non-
5 Party that makes original documents available for inspection need not designate
6 them for protection until after the inspecting Party has indicated which documents it
7 would like copied and produced. During the inspection and before the designation,
8 all of the material made available for inspection shall be deemed
9 “CONFIDENTIAL.” After the inspecting Party has identified the documents it
10 wants copied and produced, the Producing Party must determine which documents,
11 or portions thereof, qualify for protection under this Order. Then, before producing
12 the specified documents, the Producing Party must affix the “CONFIDENTIAL
13 legend” to each page that contains Protected Material. If only a portion or portions
14 of the material on a page qualifies for protection, the Producing Party also must
15 clearly identify the protected portion(s) (e.g., by making appropriate markings in
16 the margins).
17 (b) for testimony given in depositions that the Designating Party identify
18 the Disclosure or Discovery Material on the record, before the close of the
19 deposition all protected testimony.
20 (c) for information produced in some form other than documentary and for
21 any other tangible items, that the Producing Party affix in a prominent place on the
22 exterior of the container or containers in which the information is stored the legend
23 “CONFIDENTIAL.” If only a portion or portions of the information warrants
24 protection, the Producing Party, to the extent practicable, shall identify the
25 protected portion(s).
26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
27 failure to designate qualified information or items does not, standing alone, waive
1 Upon timely correction of a designation, the Receiving Party must make reasonable
2 efforts to assure that the material is treated in accordance with the provisions of this
3 Order.
4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
5 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
6 designation of confidentiality at any time that is consistent with the Court’s
7 Scheduling Order.
8 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
9 resolution process under Local Rule 37.1 et seq.
10 6.3 The burden of persuasion in any such challenge proceeding shall be on
11 the Designating Party. Frivolous challenges, and those made for an improper
12 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
13 parties) may expose the Challenging Party to sanctions. Unless the Designating
14 Party has waived or withdrawn the confidentiality designation, all parties shall
15 continue to afford the material in question the level of protection to which it is
16 entitled under the Producing Party’s designation until the Court rules on the
17 challenge.
18 7. ACCESS TO AND USE OF PROTECTED MATERIAL
19 7.1 Basic Principles. A Receiving Party may use Protected Material that is
20 disclosed or produced by another Party or by a Non-Party in connection with this
21 Action only for prosecuting, defending, or attempting to settle this Action. Such
22 Protected Material may be disclosed only to the categories of persons and under the
23 conditions described in this Order. When the Action has been terminated, a
24 Receiving Party must comply with the provisions of section 13 below (FINAL
25 DISPOSITION). Protected Material must be stored and maintained by a Receiving
26 Party at a location and in a secure manner that ensures that access is limited to the
27 persons authorized under this Order.
1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
2 otherwise ordered by the court or permitted in writing by the Designating Party, a
3 Receiving Party may disclose any information or item designated
4 “CONFIDENTIAL” only to:
5 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
6 well as employees of said Outside Counsel of Record to whom it is reasonably
7 necessary to disclose the information for this Action;
8 (b) Experts (as defined in this Order) of the Receiving Party to whom
9 disclosure is reasonably necessary for this Action and who have signed the
10 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
11 (c) the court and its personnel;
12 (d) court reporters and their staff;
13 (e) professional jury or trial consultants, mock jurors, and Professional
14 Vendors to whom disclosure is reasonably necessary for this Action and who have
15 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
16 (f) the author or recipient of a document containing the information or a
17 custodian or other person who otherwise possessed or knew the information;
18 (g) during their depositions, witnesses ,and attorneys for witnesses, in the
19 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
20 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they
21 will not be permitted to keep any confidential information unless they sign the
22 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
23 agreed by the Designating Party or ordered by the court. Pages of transcribed
24 deposition testimony or exhibits to depositions that reveal Protected Material may
25 be separately bound by the court reporter and may not be disclosed to anyone
26 except as permitted under this Stipulated Protective Order; and
27 (h) any mediator or settlement officer, and their supporting personnel,
1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
2 PRODUCED IN OTHER LITIGATION
3 If a Party is served with a subpoena or a court order issued in other litigation
4 that compels disclosure of any information or items designated in this Action as
5 “CONFIDENTIAL,” that Party must:
6 (a) promptly notify in writing the Designating Party. Such notification
7 shall include a copy of the subpoena or court order;
8 (b) promptly notify in writing the party who caused the subpoena or order
9 to issue in the other litigation that some or all of the material covered by the
10 subpoena or order is subject to this Protective Order. Such notification shall include
11 a copy of this Stipulated Protective Order; and
12 (c) cooperate with respect to all reasonable procedures sought to be
13 pursued by the Designating Party whose Protected Material may be affected. If the
14 Designating Party timely seeks a protective order, the Party served with the
15 subpoena or court order shall not produce any information designated in this action
16 as “CONFIDENTIAL” before a determination by the court from which the
17 subpoena or order issued, unless the Party has obtained the Designating Party’s
18 permission. The Designating Party shall bear the burden and expense of seeking
19 protection in that court of its confidential material and nothing in these provisions
20 should be construed as authorizing or encouraging a Receiving Party in this Action
21 to disobey a lawful directive from another court.
22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
23 PRODUCED IN THIS LITIGATION
24 (a) The terms of this Order are applicable to information produced by a
25 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
26 produced by Non-Parties in connection with this litigation is protected by the
27 remedies and relief provided by this Order. Nothing in these provisions should be
1 (b) In the event that a Party is required, by a valid discovery request, to
2 produce a Non-Party’s confidential information in its possession, and the Party is
3 subject to an agreement with the Non-Party not to produce the Non-Party’s
4 confidential information, then the Party shall:
5 (1) promptly notify in writing the Requesting Party and the Non-
6 Party that some or all of the information requested is subject to a confidentiality
7 agreement with a Non-Party;
8 (2) promptly provide the Non-Party with a copy of the Stipulated
9 Protective Order in this Action, the relevant discovery request(s), and a reasonably
10 specific description of the information requested; and
11 (3) make the information requested available for inspection by the
12 Non-Party, if requested.
13 (c) If the Non-Party fails to seek a protective order from this court within
14 14 days of receiving the notice and accompanying information, the Receiving Party
15 may produce the Non-Party’s confidential information responsive to the discovery
16 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
17 not produce any information in its possession or control that is subject to the
18 confidentiality agreement with the Non-Party before a determination by the court.
19 Absent a court order to the contrary, the Non-Party shall bear the burden and
20 expense of seeking protection in this court of its Protected Material.
21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED
22 MATERIAL
23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
24 Protected Material to any person or in any circumstance not authorized under this
25 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
26 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
27 to retrieve all unauthorized copies of the Protected Material, (c) inform the person
1 Order, and (d) request such person or persons to execute the “Acknowledgment and
2 Agreement to Be Bound” that is attached hereto as Exhibit A.
3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR
4 OTHERWISE PROTECTED MATERIAL
5 When a Producing Party gives notice to Receiving Parties that certain
6 inadvertently produced material is subject to a claim of privilege or other
7 protection, the obligations of the Receiving Parties are those set forth in Federal
8 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
9 whatever procedure may be established in an e-discovery order that provides for
10 production without prior privilege review. Pursuant to Federal Rule of Evidence
11 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
12 of a communication or information covered by the attorney-client privilege or work
13 product protection, the parties may incorporate their agreement in the stipulated
14 protective order submitted to the court.
15 12. MISCELLANEOUS
16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
17 person to seek its modification by the Court in the future.
18 12.2 Right to Assert Other Objections. By stipulating to the entry of this
19 Protective Order no Party waives any right it otherwise would have to object to
20 disclosing or producing any information or item on any ground not addressed in this
21 Stipulated Protective Order. Similarly, no Party waives any right to object on any
22 ground to use in evidence of any of the material covered by this Protective Order.
23 12.3 Filing Protected Material. A Party that seeks to file under seal any
24 Protected Material must comply with Civil Local Rule 79-5. Protected
25 Material may only be filed under seal pursuant to a court order authorizing the
26 sealing of the specific Protected Material at issue. If a Party's request to file
27 Protected Material under seal is denied by the court, then the Receiving Party may
1 file the information in the public record unless otherwise instructed by the court.
2 13. FINAL DISPOSITION
3 After the final disposition of this Action, as defined in paragraph 4, within 60
4 days of a written request by the Designating Party, each Receiving Party must
5 return all Protected Material to the Producing Party or destroy such material. As
6 used in this subdivision, “all Protected Material” includes all copies, abstracts,
7 compilations, summaries, and any other format reproducing or capturing any of the
8 Protected Material. Whether the Protected Material is returned or destroyed, the
9 Receiving Party must submit a written certification to the Producing Party (and, if
10 not the same person or entity, to the Designating Party) by the 60 day deadline that
11 (1) identifies (by category, where appropriate) all the Protected Material that was
12 returned or destroyed and (2) affirms that the Receiving Party has not retained any
13 copies, abstracts, compilations, summaries or any other format reproducing or
14 capturing any of the Protected Material. Notwithstanding this provision, Counsel
15 are entitled to retain an archival copy of all pleadings, motion papers, trial,
16 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
17 and trial exhibits, expert reports, attorney work product, and consultant and expert
18 work product, even if such materials contain Protected Material. Any such archival
19 copies that contain or constitute Protected Material remain subject to this Protective
20 Order as set forth in Section 4 (DURATION).
21 14. Any violation of this Order may be punished by any and all appropriate
22 measures including, without limitation, contempt proceedings and/or monetary
23 sanctions.
24 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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1 Dated: December 10, 2020
2 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
3
By
4 s/Robert J. Guite
ROBERT J. GUITE
5 SASCHA HENRY
ABBY H. MEYER
6 Attorneys for Starbucks Corporation
7
8 Dated: December 10, 2020
9 CARLSON LYNCH, LLP
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By s/Scott G. Braden
11 TODD D. CARPENTER
12 JAE K. KIM
SCOTT G. BRADEN
13 Attorneys for Plaintiff Teresa Adams
14 Dated: December 10, 2020
15 BLOOD HURST & O'REARDON, LLP
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By s/Thomas S. O’Reardon
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TIMOTHY G. BLOOD
18 THOMAS J. O’REARDON, II
PAULA R. BROWN
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Attorneys for Plaintiff Teresa Adams
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1 ATTESTATION
2 Pursuant to L.R. 5-4.3.4, I hereby attest that all signatories listed above, and
on whose behalf this filing is submitted, concur in its content and have authorized
4 the filing.
5 Executed this 10th day of December 2020 at San Francisco, California.
7 s/Robert J. Guite
3 ROBERT J. GUITE
10 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
11
17 || PATED: December 11, 2020
Trou. Sestl)
am. S
Honorable Karen E. Scott
15 United States Magistrate Judge
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1 EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, _____________________________ [print or type full name], of
4
___________________________________ [print or type full address], declare
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under penalty of perjury that I have read in its entirety and understand the
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Stipulated Protective Order that was issued by the United States District Court for
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the Central District of California on ______________, 20__ in the case of Teresa
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Adams, individually and on behalf of all others similarly situated v. Starbucks
9
Corporation, etc.; et al., Case No. 8:20-cv-00225-MCS-KES. I agree to comply
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with and to be bound by all the terms of this Stipulated Protective Order and I
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understand and acknowledge that failure to so comply could expose me to sanctions
12
and punishment in the nature of contempt. I solemnly promise that I will not
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disclose in any manner any information or item that is subject to this Stipulated
14
Protective Order to any person or entity except in strict compliance with the
15
provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court
17
for the Central District of California for the purpose of enforcing the terms of this
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Stipulated Protective Order, even if such enforcement proceedings occur after
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termination of this action. I hereby appoint __________________________ [print
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or type full name] of _______________________________________ [print or type
21
full address and telephone number] as my California agent for service of process in
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connection with this action or any proceedings related to enforcement of this
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Stipulated Protective Order.
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Date: ______________________________________
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City and State where sworn and signed: ______________________________
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Printed name: _______________________________
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Signature: __________________________________