The opinion
1 AYLurSi TMOiNku &lk aB (ISRBDN L 1L8P5 926) GWIaBySnOe NB,a rDskUyN, NSB &N C1R16U7T3C1 HER LLP
2 yuri.mikulka@alston.com wbarsky@gibsondunn.com
Caleb Bean (SBN 299751) 2029 Century Park East
3 caleb.bean@alston.com Suite 4000
333 S. Hope Street, 16th Floor Los Angeles, CA 90067-3026
4 Los Angeles, California 90071 Telephone: 310.552.8500
Telephone: (213) 576-1000 Facsimile: 310.551.8741
5 Facsimile: (213) 576-1100
6 Attorneys for Plaintiff Attorneys for Defendant
K-fee System GmbH Nespresso USA, Inc.
7 Additional counsel on last page Additional counsel on last page
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11 K-fee System GmbH, CASE NO. 2:21-cv-3402-GW (AGRx)
12 Plaintiff, [PROPOSED] PROTECTIVE ORDER
13 v.
NOTE CHANGES MADE BY THE
14 Nespresso USA, Inc., Nestlé Holdings, COURT
Inc. d/b/a Nestlé USA, Inc., and Nestlé
15 S.A.,
16 Defendants.
17
18
19 IT IS HEREBY STIPULATED AND AGREED, pursuant to Rule 26(c) of the
20 Federal Rules of Civil Procedure and subject to approval of the Court, by K-fee System
21 GmbH (“K-fee”), Nespresso USA Inc. (“Nespresso”), and their respective undersigned
22 counsel that this Stipulation and Order shall govern the treatment of confidential,
23 proprietary, privileged, private, or otherwise non-public information in this action.
24 Accordingly, based upon the agreement of the parties, IT IS HEREBY
25 ORDERED pursuant to Rule 26(c) of the Federal Rules of Civil Procedure that the
26 following provisions shall govern the conduct of further proceedings in this action:
27
28
1 Definitions
2 1. The term “Protected Information” shall include all information that the
3 designating party believes constitutes, discloses, or relates to proprietary business
4 information, processes, operations, research, technical or developmental information,
5 production, marketing, sales, shipments, or other proprietary data or information of
6 commercial value not generally available to the public, including, but not limited to,
7 trade secrets. The information contained therein and all copies, abstracts, excerpts,
8 analyses, or other writings that contain, reflect, reveal, suggest, or otherwise disclose
9 such Protected Information shall also be deemed Protected Information. Each party shall
10 act in good faith in designating information as Protected Information.
11 2. “CONFIDENTIAL” information means Protected Information designated
12 in accordance with paragraph 6.
13 3. “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
14 information means Protected Information that is the subset of “CONFIDENTIAL”
15 information designated in accordance with paragraph 8.
16 4. “SPECIAL PROTECTED DATA” means Protected Information
17 designated in accordance with paragraph 10.
18 5. The term “Qualified Person” shall mean:
19 (a) Court and any Court personnel involved with this action;
20 (b) K-fee’s outside counsel, their legal assistants, and members of their
21 support staffs;
22 (c) Nespresso’s outside counsel, their legal assistants, and members of
23 their support staffs;
24 (d) Any independent expert or consultant who is retained by counsel
25 solely for the purpose of assisting in this action, subject to the provisions of paragraph
26 22;
27 (e) Photocopy services;
28
1 (f) Professional translators who are retained by the attorneys for the
2 parties for the purposes of this litigation;
3 (g) Stenographic reporters, videographers, official court reporters, and
4 their assistants who are engaged in such proceedings as are necessary for the preparation
5 and trial of this action;
6 (h) Jury or trial consultants and persons employed or retained by them
7 solely in providing litigation support services to the parties’ outside counsel law firms;
8 (i) Document imaging and database services and consultants retained to
9 set up, maintain, and/or operate litigation databases for this litigation;
10 (j) Graphics or design consultants retained to prepare demonstrative or
11 other exhibits for use in this action;
12 (k) Up to two designated in-house legal personnel for the receiving party
13 and respective secretarial, clerical, paralegal and other supporting personnel;
14 (i) For K-fee, these in-house legal personnel are Dr. Martin
15 Fröhlich, and Dr. Andreas Heinen.
16 (ii) For Nespresso, these in-house legal personnel are Douglas
17 Besman, and Michael Prewitt.
18 (iii) The parties reserve the right to propose to designate additional
19 in-house legal personnel employed by the parties at a later
20 date.
21 (l) Any other person who is designated as a Qualified Person by order
22 of the Court or by written agreement of the parties, provided that such person completes
23 and signs the undertaking in the form of Exhibit A.
24 Use of Protected Information
25 6. A producing party may designate any material “CONFIDENTIAL” for
26 protection under this protective order where that material constitutes or discloses
27 “CONFIDENTIAL” information. “CONFIDENTIAL” information, as that term is used
28 herein, comprises information that the producing party in good faith contends to
1 constitute or contain information that is (a) confidential, sensitive, competitive, or
2 potentially invasive of an individual’s privacy interests; (b) not generally known in the
3 context or form as known by the producing party; (c) not normally revealed to the public
4 or third parties or, if disclosed to third parties, is such that the producing party would
5 require such third parties to maintain the information in confidence; and (d) information
6 (regardless of how generated, stored, or maintained) or tangible things that qualify for
7 protection under standards developed under Fed. R. Civ. P. 26(c). “CONFIDENTIAL”
8 information includes, but is not limited to, confidential research, development, technical,
9 commercial, or financial information, as well as other such information that the
10 requesting party and non-parties would not have access to but for this litigation.
11 7. Access to any “CONFIDENTIAL” information shall be limited to
12 Qualified Persons as described in paragraph 5.
13 8. A producing party may designate any material “HIGHLY
14 CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” for protection under this
15 protective order where the producing party believes in good faith that the material
16 constitutes or discloses highly sensitive business information or items the unrestricted
17 disclosure of which to a requesting party or a receiving party would create a substantial
18 risk of harm, including, but not limited to, the producing party’s planned commercial
19 products and planned licensing agreements. As that term is used herein, “HIGHLY
20 CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” information and items
21 consist of: (a) highly sensitive information relating to the development of beverage
22 machines or systems, or components or consumables thereof; (b) financial or business
23 reports and forecasts including plans, strategies, market analyses, costs, and pricing
24 information; (c) highly sensitive planned licensing agreements; and (d) pending or
25 abandoned patent, trademark, and copyright applications, foreign or domestic, unless
26 published or otherwise publicly available.
27 9. Access to “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES
28 ONLY” information and items shall be limited strictly to the persons designated as
1 having access to “CONFIDENTIAL” information in paragraphs 5(a)-5(j) and 5(l),
2 except that, unless otherwise agreed, no outside counsel who is involved in competitive
3 decision-making, as defined In re Deutsche Bank, 605 F.3d 1373 (Fed. Cir. 2010), shall
4 have access to material designated “HIGHLY CONFIDENTIAL – OUTSIDE
5 COUNSEL’S EYES ONLY.” Persons designated in paragraph 5(k) (“in-house legal
6 personnel”) are strictly prohibited from viewing any information designated “HIGHLY
7 CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY.”
8 10. A producing party may designate any material “SPECIAL PROTECTED
9 DATA” for protection under this protective order where the producing party believes in
10 good faith that the information, including personally identifiable information, is subject
11 to federal, state, or foreign Data Protection Laws or other privacy obligations. Examples
12 of such Data Protection Laws includes, without limitation, The Gramm-Leach-Bliley
13 Act, 15 U.S.C. § 6801 et seq. (financial information); The Health Insurance Portability
14 and Accountability Act and the regulations thereunder, 45 CFR Part 160 and Subparts
15 A and E of Part 164 (medical information), the Swiss Federal Act on Data Protection of
16 June 19, 1992, Regulation (EU) 2016/679 of the European Parliament and of the Council
17 of 27 April 2016 on the protection of natural persons with regard to the processing of
18 personal data and on the free movement of such data, and repealing Directive 95/46/EC
19 (General Data Protection Regulation), the German Federal Data Protection Act of June
20 30, 2017, and the UK Data Protection Act 2018. “SPECIAL PROTECTED DATA”
21 shall be handled by the receiving party with the highest care and may compel alternative
22 or additional protections beyond those afforded “HIGHLY CONFIDENTIAL –
23 OUTSIDE COUNSEL’S EYES ONLY” information, in which case the parties shall
24 meet and confer in good faith, and, if unsuccessful, shall move the Court for appropriate
25 relief.
26 11. Access to “SPECIAL PROTECTED DATA” shall be limited strictly to the
27 persons designated as having access to “HIGHLY CONFIDENTIAL – OUTSIDE
28 COUNSEL’S ONLY” information.
1 12. Protected Information will be used solely for the purpose of prosecuting,
2 defending, or settling this action, including any appeal and retrial, and will not be used
3 for other purposes including but not limited to patent licensing or for communications,
4 petitioning, litigation, or counseling with or before the U.S. Patent & Trademark Office
5 or any similar foreign agency.
6 13. Nothing in this protective order shall prevent any person, including a
7 Qualified Person, from making use of any information that is designated as Protected
8 Information if such information:
9 (a) Was lawfully in his or her possession prior to receipt under the
10 provisions of this protective order;
11 (b) Was or becomes available to the public through no fault of a
12 receiving party;
13 (c) Was or is obtained from a source not under an obligation of secrecy
14 to the designating party; or
15 (d) Is exempted from the operation of this protective order by written
16 consent of the designating party.
17 14. If any person disputes or challenges the designation of any information as
18 Protected Information based on any ground specified in subparagraphs (a) through (c)
19 of paragraph 13, such information shall nevertheless be treated according to its specific
20 designation as Protected Information (“CONFIDENTIAL,” “HIGHLY
21 CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY,” and/or “SPECIAL
22 PROTECTED DATA”) in accordance with the provisions of this order until such
23 designation is removed by order of the Court or by written consent of the designating
24 party.
25 Disclosure of Protected Information
26 15. Protected Information shall not be revealed, disclosed, described,
27 summarized, or otherwise communicated or made known to any person or entity,
28 directly or indirectly, other than a Qualified Person (or, in the case of “HIGHLY
1 CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY” information or “SPECIAL
2 PROTECTED DATA,” the persons identified in paragraph 9 above), or the party who
3 produced such Protected Information, except as otherwise provided in this Order. This
4 order does not govern trial. Protected Information used at trial will become public
5 absent a separate court order upon motion and a legally sufficient showing.
6 16. A document that contains or reveals Protected Information may be shown
7 to any person who authored or previously had access to or knowledge of the document,
8 as demonstrated by the document itself or by foundation testimony during a deposition.,
9 hearing, or trial.
10 17. Protected Information may be disclosed to a witness testifying under oath
11 if the witness is an officer, director, employee, consultant, expert or representative of the
12 party who produced such Protected Information.
13 18. Protected Information may be disclosed to a witness testifying under oath
14 if (a) the witness was formerly an officer, director, employee, consultant, expert, clinical
15 investigator, patent agent or attorney of the party who produced such Protected
16 Information; (b) the Protected Information was in existence during the period of his or
17 her service or employment; and (c) it is reasonable to conclude that the witness was
18 involved in the project to which the Protected Information relates.
19 19. This order shall not prevent counsel from examining a witness testifying
20 under oath in a good-faith effort to determine whether the witness has discoverable
21 information about the Protected Information.
22 20. Nothing in this protective order shall prevent disclosure of Protected
23 Information if the producing party consents to such disclosure or if the Court, after notice
24 to all parties, orders such disclosure.
25 21. Counsel desiring to disclose Protected Information to an individual
26 according to paragraph 5(d), 5(f), 5(h), 5(j), 5(k), or any other person according to
27 paragraph 5(l) shall first obtain a signed declaration in the form shown in attached
28 Exhibit A from that person. For independent experts or consultants according to
1 paragraph 5(d), or for any changes to the individuals identified in subparagraph 5(k), at
2 least seven (7) days in advance of the proposed disclosure of any Protected Information
3 to that person, counsel shall serve that person’s signed declaration and curriculum vitae
4 or resume by facsimile or electronic mail on every other party. The identification of an
5 independent expert or consultant according to paragraph 5(d) shall include the full name
6 and professional address and/or affiliation of the proposed expert or consultant, an up-
7 to-date curriculum vitae, any prior or current employments or consultancies for any
8 party within the last five years (except those engagements that are protected from
9 disclosure pursuant to Fed. R. Civ. P. 26), including a list of the cases in which the expert
10 or consultant has testified at deposition, at a hearing, or at trial within the last four years.
11 A party may object for cause to the proposed disclosure by serving a written objection
12 within seven (7) days after receiving the copy of the signed declaration. Failure to timely
13 object shall operate as a waiver of the objection. If a party objects to the proposed
14 disclosure, the objecting party’s Protected Information shall not be disclosed to such
15 person except by order of the Court or by written consent of the objecting party. In the
16 event that a motion is made, the objecting party shall have the burden of proving that
17 disclosure should not be made.
18 22. For the duration of this action and for two years after entry of final
19 judgment from which no appeal may be taken, anyone other than the Court who,
20 according to paragraphs 9 or 11, receives another party’s material designated “HIGHLY
21 CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” or “SPECIAL
22 PROTECTED DATA,” shall not be involved, directly or indirectly, in the prosecution
23 of any patent application, including reissue, directed to beverage machines or systems,
24 or components or consumables thereof, or any method of manufacture or use of such
25 machines, systems, components, or consumables, and shall not be involved, directly or
26 indirectly, in the crafting, drafting, or amending of any such patent claim during any
27 reexamination, inter partes review, or post grant review proceedings. For the avoidance
28 of doubt, “prosecution” as used in this Order does not include engaging formally or
1 informally, or directly or indirectly, in any post-grant proceedings before the Patent Trial
2 and Appeal Board at the U.S. Patent and Trademark Office, including any inter partes
3 review, post-grant review, or reexamination proceeding except to the extent involvement
4 includes drafting, crafting, or amending claims during such proceedings.
5 23. If a party intends to reveal Protected Information of another party during a
6 trial, court appearance or hearing, which is open to the public, the party intending to
7 reveal such Protected Information shall provide reasonable notice and opportunity to
8 object to the party that produced the Protected Information, unless consent from the party
9 that produced the Protected Information party was previously obtained.
10 24. Should any Protected Information be disclosed, through inadvertence or
11 otherwise, by a receiving party to any person not duly authorized to receive such
12 information under this protective order, then the receiving party responsible for such
13 disclosure shall promptly notify counsel for the disclosing party of all pertinent facts and
14 make every effort to prevent further unauthorized disclosure, including retrieving all
15 copies of the Protected Information from the unauthorized recipient(s) thereof and
16 requesting that each such recipient execute the declaration attached as Exhibit A.
17 Identification and Marking of Protected Information
18 25. Any document or other tangible thing that contains or reveals Protected
19 Information shall be labeled with the legend “CONFIDENTIAL,” “HIGHLY
20 CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY,” and/or “SPECIAL
21 PROTECTED DATA,” or a marking of like import. Such marking shall appear on each
22 page of the document that contains Protected Information. For pleadings and discovery
23 responses, such marking need only appear on the first page of the document. Any
24 document or other tangible thing so labeled and the information that it contains or reveals
25 shall be treated in accordance with the provisions of this protective order. Any Protected
26 Information not reduced to documentary or physical form or which cannot be
27 conveniently labeled shall be so designated by a party by serving a written notification
28 on the receiving party within a reasonable amount of time after disclosure.
1 26. When a party initially produces documents for inspection, no marking need
2 be made by the producing party in advance of the inspection. For purposes of the
3 inspection, all documents shall be treated as containing Protected Information. After the
4 receiving party selects specified documents for copying, the producing party shall
5 appropriately mark the copies of the selected documents before they are provided to the
6 receiving party.
7 27. Only Qualified Persons, the deponent, and the court reporter and
8 videographer shall be allowed to attend any portion of a deposition in which Protected
9 Information is used or elicited from the deponent. The deposition of any witness (or any
10 portion of such deposition) that encompasses “HIGHLY CONFIDENTIAL - OUTSIDE
11 COUNSEL’S EYES ONLY” information or “SPECIAL PROTECTED DATA” shall be
12 taken only in the presence of persons who are qualified to have access to such
13 information.
14 28. Unless otherwise agreed, depositions shall be treated as containing
15 “CONFIDENTIAL” information. If a party contends that the deposition transcript
16 contains “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY”
17 information, “SPECIAL PROTECTED DATA,” or does not contain Protected
18 Information, that party will be required to affirmatively designate, in writing or on the
19 record, the transcript, or portions of the transcript, as “HIGHLY CONFIDENTIAL -
20 OUTSIDE COUNSEL’S EYES ONLY,” “SPECIAL PROTECTED DATA,” or as not
21 containing Protected Information. If they do not, the transcript shall continue to be
22 treated as containing “CONFIDENTIAL” information.
23 29. A non-party to the litigation (e.g., a third party producing information
24 pursuant to subpoena) may designate such information as Protected Information as set
25 forth in paragraph 25. If so designated, such Protected Information shall be subject to
26 the same restrictions and conditions as information designated by any party as Protected
27 Information. Nothing in this provision shall limit the ability of a party to designate such
28 information produced by a third party as Protected Information.
1 Inadvertent Failure to Designate
2 30. The inadvertent failure by a producing party to designate specific
3 documents or materials as containing Protected Information shall not be deemed a
4 waiver in whole or in part of a claim of confidentiality as to such documents or materials.
5 A producing party seeking to designate such documents or materials may do so by giving
6 written notice to the receiving party. Upon notice to the receiving party of such failure
7 to designate, the receiving party shall cooperate to restore the confidentiality of the
8 inadvertently undesignated information. No showing of error, inadvertence, or
9 excusable neglect shall be required for re-designation.
10 Storage of Protected Information
11 31. The recipient of any “CONFIDENTIAL” information, “HIGHLY
12 CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY” information, or “SPECIAL
13 PROTECTED DATA” (excluding the Court) that is provided under this protective
14 order shall maintain such information in a reasonably secure and safe manner that
15 ensures that access is limited to the persons authorized under this Order, and shall further
16 exercise the same standard of due and proper care with respect to the storage, custody,
17 use, and/or dissemination of such information as is exercised by the recipient with
18 respect to its own proprietary information.
19 Data Security
20 32. Any person in possession of “CONFIDENTIAL” information, “HIGHLY
21 CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY” information, or “SPECIAL
22 PROTECTED DATA” shall maintain a written information security program that
23 includes reasonable administrative, technical, and physical safeguards designed to
24 protect the security and confidentiality of such “CONFIDENTIAL” information,
25 “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY” information, or
26 “SPECIAL PROTECTED DATA”, protect against any reasonably anticipated threats or
27 hazards to the security of such “CONFIDENTIAL” information, “HIGHLY
28 CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY” information, or “SPECIAL
1 PROTECTED DATA”, and protect against unauthorized access to “CONFIDENTIAL”
2 information, “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY”
3 information, or “SPECIAL PROTECTED DATA”. To the extent a party or person does
4 not have an information security program, they may comply with this provision by
5 having the “CONFIDENTIAL” information, “HIGHLY CONFIDENTIAL - OUTSIDE
6 COUNSEL’S EYES ONLY” information, or “SPECIAL PROTECTED DATA”
7 managed by and/or stored with eDiscovery vendors or claims administrators that
8 maintain such an information security program. If a receiving party or authorized
9 recipient discovers any loss of “CONFIDENTIAL” information, “HIGHLY
10 CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY” information, or “SPECIAL
11 PROTECTED DATA” or a breach of security, including any actual or suspected
12 unauthorized access, relating to another party’s “CONFIDENTIAL” information,
13 “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY” information, or
14 “SPECIAL PROTECTED DATA”, the receiving party or authorized recipient shall: (1)
15 promptly provide written notice to disclosing party of such breach; (2) investigate and
16 make reasonable efforts to remediate the effects of the breach, and provide disclosing
17 party with assurances reasonably satisfactory to disclosing party that such breach shall
18 not recur; and (3) provide sufficient information about the breach that the disclosing
19 party can reasonably ascertain the size and scope of the breach. The receiving party or
20 authorized recipient agrees to cooperate with the producing party or law enforcement in
21 investigating any such security incident. In any event, the receiving party or authorized
22 recipient shall promptly take all necessary and appropriate corrective action to terminate
23 the unauthorized access. This paragraph does not apply to the Court.
24 Personally Identifiable Information
25 33. Personally identifiable information that a party has designated as
26 “SPECIAL PROTECTED DATA” as defined in paragraph 10 based on its good faith
27 belief that the information is subject to federal, state, or foreign Data Protection Laws,
28
1 data privacy laws, or other privacy obligations, or any of the information contained
2 therein, shall be handled by counsel for the receiving party with the highest care.
3 Production of Privileged or Protected Documents
4 34. Pursuant to Federal Rule of Evidence 502(d), the production of documents
5 or materials that the producing party thereafter claims to be subject to the attorney-client
6 privilege, work-product immunity, or other protection mandated by local law shall not
7 constitute a waiver of such privilege, immunity, or other protection in this or any other
8 action. After receiving written notice from the producing party that documents or
9 materials subject to the attorney-client privilege, work-product immunity, or other
10 protection have been produced, the receiving party shall not review, copy, or otherwise
11 disseminate the documents or materials, nor shall it disclose their substance. In addition,
12 the receiving party shall return the documents or materials and all copies within five (5)
13 days from receiving notice, or provide written confirmation of the destruction of the
14 original and all copies of the identified documents, including all documents and things
15 generated by a receiving party which documents and things contain information derived
16 from the returned/destroyed materials. The receiving party shall not utilize the
17 information contained in the returned/destroyed documents or materials for any purpose,
18 or disseminate or transmit such information.
19 (a) If the receiving party wishes to contest that any such document or
20 thing is protected by the attorney-client privilege, work-product immunity, or other
21 protection mandated by local law, the receiving party shall so notify the producing party
22 in writing when the document or thing is returned to the producing party (“Notice of
23 Designation”).
24 (b) Within five (5) days after receiving a Notice of Designation, the
25 producing party shall provide to the receiving party for each such document or thing a
26 description of the basis for the claim of privilege, immunity, or other protection.
27 (c) Within five (5) days after receiving such description, the receiving
28 party may seek relief from the Court to compel production of such documents and things,
1 the protection of which is still disputed. In any such motion to compel production of the
2 returned/destroyed document, the receiving party shall not rely upon in any manner or
3 assert as a ground for ordering production the fact, circumstances, or contents of the
4 production. Any such motion shall be filed under seal.
5 (d) The parties may stipulate to extend the time periods set forth in (b)
6 and (c) above.
7 (e) Nothing in this order overrides any attorney’s ethical responsibilities
8 to refrain from examining or disclosing materials that the attorney knows or reasonably
9 should know to be privileged and to inform the disclosing party that such materials have
10 been produced.
11 (f) The disclosing party retains the burden—upon challenge pursuant to
12 paragraph (c)—of establishing the privileged or protected nature of the information in
13 question.
14 (g) Nothing in this order limits the right of any party to petition the Court
15 for an in camera review.
16 (h) This order does not preclude a party from voluntarily waiving the
17 attorney-client privilege or work product protection. The provisions of Federal Rule of
18 Evidence 502(a) apply when the disclosing party uses or indicates that it may use
19 information produced under this order to support a claim or defense.
20 (i) Under this order, the provisions of Federal Rule of Evidence 502(b)
21 are inapplicable.
22 Challenges to Protected Information Designation
23 35. A party shall not be obligated to challenge the propriety of a Protected
24 Information designation at the time of production of the designated materials, and a
25 failure to do so shall not preclude a subsequent challenge thereto consistent with the
26 Court’s scheduling order(s). In the event that a party disagrees at any time with a
27 Protected Information designation made by another party, the parties shall make a good-
28 faith attempt to resolve the dispute on an informal basis. If the parties cannot resolve
1 the dispute, the objecting party may seek appropriate relief from the Court consistent
2 with the scheduling order(s), and the designating party shall have the burden of proving
3 that its Protected Information designation is proper.
4 Filing of Protected Information
5 36. If a party deems it necessary to submit Protected Information to the Court,
6 the party shall file or designate such information with an application to file under seal
7 in accordance with Local Rule 79-5 and the Local Rules, and nothing in this Order shall
8 preclude the producing party from requesting that the Court seal that party’s Protected
9 Information.
10 37. Nothing in this Order shall prevent a party from using any document,
11 material or other information that is designated as Protected Information under this
12 Order at a hearing, trial or other court proceeding in this action, provided such use is
13 otherwise consistent with the terms of this Order. and such document, material or other
14 information shall not lose its confidential status through such use. The parties shall take
15 all steps permitted by the Court and reasonably required to protect the confidentiality of
16 such designated information during such use.
17 Advice to Clients
18 38. Nothing in this protective order shall bar or otherwise restrict an attorney
19 herein from rendering advice to his or her client with respect to this action and, in the
20 course thereof, referring to or relying upon his or her examination of Protected
21 Information. In rendering such advice and in otherwise communicating with his or her
22 client, the attorney shall not disclose any Protected Information if such disclosure would
23 be contrary to the provisions of this protective order.
24 Discoverability of Expert Materials
25 39. Discovery of communications between counsel and any independent expert
26 or consultant retained or specially employed by that counsel shall be limited to factual
27 information, analyses, documents, and data considered or relied on by the expert in
28 rendering the opinions expressed in an expert report or at trial. Except as otherwise
1 provided herein, all other communications between counsel and the expert relating to
2 the process of preparing an expert report or developing opinions for trial, including all
3 preliminary or draft reports, expert working papers, notes, and communications relating
4 thereto, shall be deemed exempt from discovery and use at trial.
5 Third-Party Requests
6 40. If any third party requests the production of any Protected Information,
7 including but not limited to a request by subpoena, the receiving party in possession of
8 such Protected Information must:
9 (a) Notify the producing party within 7 days of receiving the request;
10 and
11 (b) Take all lawful steps necessary to assert (or permit the Producing
12 Party to assert) all applicable protections, including but not limited to:
13 (i) Permitting the producing party a reasonable opportunity to
14 intervene and be heard, and
15 (ii) Defending the asserted rights, privileges, and immunities if the
16 producing party cannot be heard.
17 Other Proceedings
18 41. By entering this order and limiting the disclosure of information in this
19 case, the Court does not intend to preclude another court from finding that information
20 may be relevant and subject to disclosure in another case. Any person or party subject
21 to this order who becomes subject to a motion to disclose another party’s Protected
22 Information pursuant to this order shall promptly notify that party of the motion so that
23 the party may have an opportunity to appear and be heard on whether that information
24 should be disclosed.
25 Miscellaneous
26 42. No party shall be responsible to another party for any use made of
27 information that was produced and not designated as Protected Information.
28
1 43. Documents and things produced or made available for inspection may be
2 subject to redaction, in good faith by the producing party, of information that is neither
3 relevant to the subject of this Action nor reasonably calculated to lead to the discovery
4 of admissible evidence, or is subject to the attorney-client privilege or work product
5 immunity. Any such redaction shall be clearly labeled. No redaction for relevance or
6 non-responsiveness shall be made that obscures or otherwise impacts those relevant or
7 responsive portions of a document, including as to any context necessary to a complete
8 understanding, presentation, or calculation of any relevant or responsive portions. All
9 documents redacted based on attorney-client privilege or work product immunity shall
10 be listed alongside their corresponding Bates number in a privilege log stating the basis
11 for such redaction.
12 44. No party needs to log relevant and responsive material generated on or after
13 April 21, 2021 in a privilege log. The parties further agree that either party may request
14 that additional material generated on or after April 21, 2021 be logged, and the producing
15 party shall log these documents if the requesting party demonstrates that “good cause”
16 exists for generating a privilege log of the withheld material to the producing party’s
17 satisfaction or as ordered by the Court.
18 45. Nothing here shall prevent the parties from redacting personally identifying
19 information or other information protected under Swiss, German, or UK privacy law,
20 the General Data Protection Regulation, or other foreign laws and regulations. The
21 parties recognize that certain witnesses may be subject to laws concerning data privacy,
22 data secrecy, or cross-border data transfer restrictions that require protections or
23 limitations beyond those described herein. The parties shall work in good faith to
24 address such issues as they arise and to abide by relevant foreign laws and regulations.
25 46. When the inadvertent or mistaken disclosure of any information contained
26 in any document that the producing party believes is non-responsive is discovered by
27 the producing party and brought to the attention of the receiving party, the producing
28 party shall promptly produce a properly redacted replacement version of said document
1 to the receiving party. Upon receipt of the replacement version, the receiving party shall
2 immediately return and/or destroy all copies of the original version of said document,
3 and confirm in writing to the producing party that it has done so.
4 47. Any production of documents and ESI located abroad, in particular in
5 Europe and Switzerland, will need to comply with local laws, including laws concerning
6 cross-border data transfer, data privacy, and data secrecy protections unless otherwise
7 ordered by the Court. Further, there are restrictions on the taking of depositions
8 outside of the United States. Should any such depositions be needed, the parties will
9 meet and confer to try and resolve any issues that might arise.
10 48. Nothing in this protective order shall prejudice the right of any party to
11 oppose production of any information for lack of relevance, privilege, or any ground
12 other than confidentiality.
13 49. Nothing in this protective order shall prejudice the right of any party to seek
14 at any time a further order modifying this protective order.
15 50. Nothing in this protective order shall prejudice the right of any party to
16 bring before the Court at any time the question of whether any greater or lesser
17 restrictions should be placed upon the disclosure of any Protected Information.
18 51. In the event that a new party is added, substituted, or brought in, this
19 protective order will be binding on and inure to the benefit of the new party, along with
20 the corresponding obligations on the new party to maintain the confidentiality of the
21 Protected Information, subject to the right of the new party to seek relief from or
22 modification of this protective order.
23 52. Nonparties who produce information in this action may avail themselves of
24 the provisions of this protective order.
25 53. Within ninety (90) days after the termination of this action (including any
26 appeals), each document and each other tangible thing that contains or reveals Protected
27 Information and any copies, abstracts, summaries, notes, or other records regarding the
28 contents of any Protected Information shall be either (a) returned to the attorney of
1 record for the producing party or (b) destroyed with a representation of such destruction
2 being made to the attorney of record for the producing party.
3 54. Within ninety (90) days after any counsel has withdrawn or otherwise been
4 terminated as counsel of record, said counsel shall likewise return or destroy each
5 document and each other tangible thing in their possession that contains or reveals
6 Protected Information and any copies, abstracts, summaries, notes, or other records
7 regarding the contents of any Protected Information.
8 55. Notwithstanding the foregoing, outside counsel and in-house legal
9 representatives may maintain each of the following: each paper filed with the Court
10 together with any exhibits thereto, each deposition transcript together with the exhibits
11 marked at the deposition, each expert report together with any exhibits thereto, all
12 written discovery and responses thereto, each demonstrative used at trial or any other
13 hearing, each trial or hearing transcript, each exhibit used at trial, each item of
14 correspondence, and all drafts, memoranda, and other documents constituting work
15 product which were based upon or which include Protected Information, so long as the
16 terms of this protective order will continue to govern any such retained materials and
17 provided that information protected by data privacy will not be retained. In the event
18 that outside counsel and in-house legal representatives maintain such documents, they
19 shall not disclose material containing any Protected Information to another party or third
20 party absent subpoena or court order. Outside counsel and in-house legal representatives
21 likewise need not purge their email, document management systems, or back-up storage
22 media, provided, however, that any Protected Information contained in such documents
23 retained by counsel shall remain subject to the protections of this protective order. No
24 person or receiving party is obligated to return or destroy Protected Information
25 contained on electronic backup back-up tapes or other archival media, which should be
26 treated in accordance with standard retention policies. However, to the extent that any
27 material is accessed from back-up storage media, information protected by data privacy
28 obligations shall be destroyed or returned and legal hold obligations shall be periodically
1 reviewed for necessity and proportionality and information protected by data privacy
2 obligations shall not be retained in perpetuity.
3 56. The provisions of this protective order shall survive and remain in full force
4 and effect after the termination of this action (including any appeals). This Court shall
5 retain jurisdiction even after termination of this litigation to enforce this protective order
6 and make such amendments, modifications, deletions, and additions to this protective
7 order as the Court may from time to time deem appropriate.
8 This protective order may be amended as need may arise by order of the Court
9 upon motion or stipulation of the parties.written agreement of the parties, subject to
10 Court approval.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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1 |) Dated: November 2, 2021
2|| By: /s/ Yuri Mikulka By: /s/ Wayne Barsky
Yuri Mikulka (CA Bar No. 185926) GIBSON DUNN & CRUTCHER LLP
Yuri, Mittulka@alston.com Wayne Barsky (SBN 116731)
4|| Caleb Bean (CA Bar No. 299751) 2029 Century Park East
Caleb.Bean@alston.com Suite 4000
ALSTON & BIRD LLP Los Angeles, CA 90067-3026
333 South Hope Street, 16th Floor Telephone: Coy 552-8500
Los Angeles, CA 90071 Facsimile: (310) 551-8741
Telephone: (213) 576-1000 wbarksy@gibsondunn.com
7\| Facsimile: (213) 576-1100
GIBSON DUNN & CRUTCHER LLP
8 || Theodore Stevenson III (Admitted Pro Y. Ernest Hsin (SBN 201668)
Hac Vice) 555 Mission Street, Suite 3000
9} Ted. Stevenson @alston.com San Francisco, CA 94105-0921
ALSTON & BIRD LLP Telephone: ab) 393-8200
10 || 2200 Ross Ave., Suite 2300 Facsimile: (415) 393-8306
Dallas, TX 75201 ehsin@gibsondunn.com
11) Telephone: (214) 922-3400
Facsimile: (214) 922-3899 GIBSON DUNN & CRUTCHER LLP
12 Christine L. Ranney (SBN 295773)
1801 California Street, Suite 4200
13 Denver, CO 80202-2642
Telephone: G0) 298-5700
14 Facsimile: (303) 298-5907
15 cranney@gibsondunn.com
GIBSON DUNN & CRUTCHER LLP
16 Andrew Philip Blythe (SBN 321867)
3161 Michelson Drive
17 Irvine, CA 92512-4412
Telephone: (949) 451-3800
18 Facsimile: 049) 451-4220
19 ablythe@gibsondunn.com
Attorneys for Plaintif{/Counter- Attorneys for Defendants/Counter-
20 Defendant Complainant
1 K-fee System GmbH Nespresso USA, Inc.
22
23 IT IS SO ORDERED
24 Whiasr a, Kearnberg,
DATED: November 9, 2021
25 The Honorable Alicia G. Rosenberg
26 United States Magistrate Judge
27
28
1 EXHIBIT A
2
UNITED STATES DISTRICT COURT
3
CENTRAL DISTRICT OF CALIFORNIA
4
5
K-fee System GmbH, CASE NO. 2:21-cv-3402-GW (AGRx)
6
Plaintiff,
7
v.
8
Nespresso USA, Inc., Nestlé Holdings,
9 Inc. d/b/a Nestlé USA, Inc., and Nestlé
S.A.,
10
Defendants.
11
12
13
AGREEMENT TO BE BOUND
14
I, ________________________, declare and state under penalty of perjury that:
15
1. My address is _______________________________.
16
2. My present employer is ___________________________ and the address
17
of my present employer is _____________________________________________.
18
3. My present occupation or job description is
19
____________________________________________________________________.
20
4. I have received a copy of the Stipulated Protective Order in this action,
21
which order was entered on ___________________.
22
5. I have carefully read and understand all of the provisions of the Stipulated
23
Protective Order.
24
6. I will comply with all of the provisions of the Stipulated Protective Order.
25
7. I will hold in confidence, will not disclose to anyone not qualified under
26
the Stipulated Protective Order, and will use only for purposes of this action, any
27
Protected Information that is supplied to me.
28
1 8. At the termination of this action or any time requested by counsel for the
2 party by whom I am employed, I will return each document and each other tangible thing
3 that discloses or reveals any Protected Information to the attorney who provided such
4 document or other tangible thing to me. Moreover, I will deliver any copies, abstracts,
5 summaries, notes, or other records regarding the contents of any Protected Information
6 to the attorney who provided such Protected Information to me.
7 9. I understand that if I violate the provisions of the Stipulated Protective
8 Order, I will be in violation of a Court order and subject to sanctions or other remedies
9 that may be imposed by the Court and potentially liable in a civil action for damages.
10 10. I hereby submit to the jurisdiction of the United States District Court for
11 the Central District of California for the purpose of enforcement of the Stipulated
12 Protective Order.
13
14 I declare under penalty of perjury of the laws of the United States that the
15 foregoing is true and correct.
16
17 Dated:
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