The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OFNEW YORK
IN RE AMAZON.COM, INC. EBOOK
No. 1:21-cv-00351-GHW-DCF
ANTITRUST LITIGATION
[-P--R--O--P--O--S--E--D-] PROTECTIVE ORDER DF
Honorary Debra C. Freeman, MagistrateJudge:
WHEREAS, all of the parties to this action (collectively, the “Parties” and each
individually, a “Party”) request that this Court issue aprotective order pursuant to Federal Rule
of Civil Procedure 26(c) to protect the confidentiality of nonpublic and competitively sensitive
information that they may need to disclose in connection with discovery in this action;
WHEREAS, the Parties, through counsel, agree to the following terms; and
WHEREAS, this Court finds that good cause exists for issuance of an appropriately
tailored confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that the Parties to this action,their respective officers,
agents, servants, employees, and attorneys, any other person in active concert or participation
with any of the foregoing, and all other persons with actual notice of this Order will adhere to
the following terms, upon pain of contempt:
1. Definitions, as used herein:
a. “Competitive Decisionmaking” means making or influencing decisions
regarding a firm’s business operations, including development or implementationof competitive
strategies, business plans, and third-party negotiations, but does not include the rendering of
legal advice as to litigation or antitrust issues related to such decisions.
b. “Confidential”informationmeans:
i. previously non-disclosed commercial or financial information
(including, without limitation, profitability reports or estimates, pricing, contracts, agreements,
percentage fees, design fees, royalty rates, minimum guarantee payments, sales reports, and sale
margins);
ii. previously non-disclosed material relating to ownership or control
of any non-public company;
iii. any trade secret or other confidential research, development, or
commercial information, as such terms are used in Fed. R. Civ. P. 26(c)(1)(G), or any
document, transcript, or other material containing such information that has not previously been
published or otherwise made publicly available;
iv. any information, documents or non-privileged testimony previously
disclosed only to a government agency, including, but not limited to, information, documents,
testimony (whether by formal deposition or information interview) produced to a government
agency voluntarily or in response to compulsory process such as a subpoena or civil
investigative demand;
v. any information of a personal or intimate nature regarding any
individual; or
vi. any other category of information given confidential status by this
Court after the date of this Order.
c. “Disclosed” means shown divulged, revealed, produced, described,
transmitted or otherwise communicated, in whole or in part, and “Disclose” means in present
tense to do the same.
d. “Discovery Material” means information of any kind produced or
disclosed in the course of discovery in this action.
e. “Highly Confidential” information means any Confidential information
that the Producing Party (defined below)claiming confidentiality reasonably and in good faith
believes would place that person at risk of suffering a significant competitive or commercial
disadvantage if it were disseminatedto someone involved in CompetitiveDecisionmaking at a
competitor, a retailer of physical books or eBooks, or a firm with which the person claiming
confidentiality transacts business. Highly Confidential information includes, but is not limited
to, previously non-disclosed business plans, product development information, confidential
contract terms or negotiating positions, and/or marketing plans.
f. “Producing Party” means any person or entity who produces any
information or testifies in this action voluntarily or in response to a discovery request or
subpoena.
2. With respect to Discovery Material that a person has designated as Confidential
or Highly Confidential pursuant to this Order, no person subject to this Order may Disclose such
Confidential Discovery Material or Highly Confidential Discovery Material to anyone else
except as expressly permitted hereunder.
3. With respect to the Confidentialor Highly Confidential portion of any Discovery
Material,otherthan deposition transcripts and exhibits arising out of the above captioned case,
the Producing Party or its counsel may designate such portion as Confidentialor Highly
Confidential by stamping or otherwise clearly marking as “Confidential” or “Highly
Confidential” the protected portion in a manner that will not interfere with legibility or
audibility. Should a party state its intent to file a document partially-stamped as “Confidential”
or “Highly Confidential,” the producing party will produce a redacted version of said document
that will not interfere with legibility or audibility.
4. A Producing Party or its counsel may designate deposition exhibits or portions of
deposition transcripts arising out of the above-captioned case as Confidential Discovery
Material or Highly Confidential Discovery Material either by: (a) indicating on the record
during the deposition that a question calls for Confidential informationor Highly Confidential
information, in which case the reporter will bind the transcript of the designated testimony in a
separate volume and mark it as “Confidential Information Governed by Protective Order”or
“Highly Confidential Information Governed by Protective Order”; or (b) notifying the reporter
and all counsel of record, in writing, within 30 calendar days of receipt of the final transcript of
thedeposition, of the specific pages and lines of the transcript that are to be designated
Confidential or Highly Confidential,in which case all counsel receiving the transcript will be
responsible for marking the copies of the designated transcript in their possession or under their
control as directed by the Producing Party or that person’s counsel. During the deposition and
during the 30-day calendar period followingreceipt of the final transcript of thedeposition, all
Parties will treat the entire deposition transcript as if it had been designated Highly Confidential.
5. If at any time before the termination of this action a Producing Party realizes that
it should have designated as Confidentialor Highly Confidentialsome portion(s) of Discovery
Material that it previously produced without limitation, the Producing Party may so designate
such material by notifying all Parties in writing. Thereafter, all persons subject to this Order will
treat such designated portion(s) of the Discovery Material as Confidential or Highly
Confidential. In addition, the Producing Party shall provide each other Party with replacement
versions of such Discovery Material that bears the Confidential or Highly Confidential
designation within two business days of providing such notice.
6. Nothing contained in this Order will be construed as: (a) a waiver by a Party or
person of its right to object to any discovery request; (b) a waiver of any privilege or protection;
or (c) a ruling regarding the admissibility at trial of any document, testimony, or other evidence.
7. Except as otherwise authorized by this Order, information designated as
Confidential pursuant to this Order must not be disclosed to any person other than the
individuals set forth belowand may be disclosed to and used by those individuals only in the
manner described below:
a. the Court and its personnel;
b. court reporters and their staff (other than those employed by the
Court and/or present at Court hearings, who need not sign the Non-Disclosure Agreement
annexed as Exhibit A);
c. outside counsel acting for any Partyin this action and that outside
counsel’s employees and independent contractors, includingvendors for copying and document
management services,that are assistingsuch outside counsel in the prosecution ordefenseof
this litigation, including the use of such materials in any comment period regarding a proposed
resolution of any portion of this litigation, to assist in the prosecutionor defenseof this
litigation;
d. as to any document or particular informationdesignated as
Confidential, the authors, addressees, and any other personindicated on the face of said
document or particular informationas having received a copy, solely to the extent that they have
previously had lawful access to said document or particular information disclosed or to be
disclosed;
e. persons (and their counsel) who are current employees of the
ProducingParty(or its then current parent, subsidiary, or affiliate) that produced the
Confidential information, or whom counsel for plaintiffs or defendants believes in good faith to
have, or have had, prior access to the Confidential information, or who have been participants in
a communication that is the subject of the Confidential information and from whom verification
of or other information about that access or participation is sought, solely to the extent of
disclosing such information to which they have or may have had access or that is the subject of
the communication in which they have or may have participated; provided that,unless and until
counsel confirms that any such persons have or have had access or were participants,only as
much of the information may be disclosed as may be necessary to confirm the person’s access
or participation;
f. testifying or consulting experts retained by a Party to assist in the
prosecution or defense of this litigation, including employees of the firm with which the expert
or consultant is associated to the extent necessary to assist the expert’s work in this litigation,
provided that such experts and staff are not employed by, or otherwise involved in Competitive
Decisionmaking, for any Party;
g. any mediators, secretaries, paraprofessional assistances, and other
employees of such mediators who are actively engaged in assisting the mediators in connection
with this matters;
h. for any defendant, to assist in the defense of this litigation, no
more than two (2)in-house counsel whose job responsibilities relating to trade books (in any
format, e.g.,print, electronic,and/or audio) are limited entirely tolitigation management and
who arenot involved in Competitive Decisionmaking as to trade books:
1. Alexis Collins (Amazon)
2. Cristina Fernandez (Amazon)
3. Jennifer Philbrick McArdle (Hachette)
4. Genie Gavenchak (HarperCollins)
5. Trina Hunn (HarperCollins)
6. Rosemary Spano (Macmillan)
7. Carolyn Foley (Penguin Random House)
8. Andrew Nieh (Simon & Schuster)
9. Joseph F. Richburg (Simon & Schuster)
In the event that any of the above-listed in-house counsel acquires trade book job
responsibilities other than litigation management or becomes involved in Competitive
Decisionmaking as to trade books, such counsel will be reclassified as a subparagraph 7(i)
in-house counsel. In the event that any of the above-listed in-house counsel acquires business
job responsibilities in addition to or in lieu of his/her legal responsibilities, such counsel no
longer shall have access to any Confidential or Highly Confidential information. In the event
that a defendant’s designated in-house counsel is no longer eligible to serve as a designee under
this Protective Order, due to a change in such defendant’s designated in-house counsel’s role or
otherwise, such defendant may designate a replacement in-house counsel who meets the criteria
set forth herein and shall cause such replacement in-house counsel to execute the Non-
Disclosure Agreement annexed as Exhibit A; and
i. for any defendant, to assist in the defense of this litigation, no
more than two(2)in-house counsel who do not also have non-legal roles and no more than one
non-legal employee who has no direct role in negotiating eBook or physical book distribution
agreements between a publisher defendant and a book retailer or is someone to whom such an
employee reports directly or indirectly:
1. Amy Posner (Amazon)
2. Min Lee (Hachette)
3. Bill Adams (HarperCollins)
4. Martin D’Halluin (HarperCollins)
5. Paul Sleven (Macmillan)
6. Amy Wolosoff (Macmillan)
7. Celia Guerra (Simon & Schuster)
8. Felice Javit (Simon & Schuster)
9. Veronica Jordan (Simon & Schuster)
In the event that any of the above-listed in-house counsel acquires business job responsibilities
in addition to or in lieu of his/her legal responsibilities, such counsel no longer shall have access
to any Confidential information. In the event that a defendant’s designated in-house counsel is
no longer eligible to serve as a designee under this Protective Order, due to a change in such
defendant’s designated in-house counsel’s role or otherwise, such defendant may designate a
replacement in-house counsel who meets the criteria set forth herein and shall cause such
replacement in-house counsel to execute the Non-Disclosure Agreement annexed as Exhibit A.
8. Except as otherwise authorized by this Order, information designated as Highly
Confidential pursuant to this Order must not be disclosed to any person other than the
individuals set forth in subparagraphs 7(a) through (h) of this Order, and may be disclosed to
and used by those individuals only in connection with this litigation.
9. Before disclosing any Confidential Discovery Material or Highly Confidential
Material to any person referred to in Paragraphs 7(b)-(i)and/or 8 above, counsel must provide a
copy of this Order to such person, who must sign theNon-Disclosure Agreement in the form
annexed as Exhibit A hereto stating that he or she has read this Order and agrees to be bound by
its terms. Said counsel must retain each signed Non-Disclosure Agreement, hold it in escrow,
and produce it to opposing counsel either before such person is permitted to testify (at
deposition or trial) or at the conclusion of the case, whichever comes first. For any outside
counsel who signs the Non-Disclosure Agreement, said outside counsel’s employees, paralegals,
assistants, and staff are exempt from the requirements to sign the Non-Disclosure Agreement.
Also exempt from signing the Non-Disclosure Agreement is any current employee orofficer of
the producing party, or any witness who testifies only regarding a document(s) sent or received
by said witness in accordance with the provisions in paragraph 7(d)of this Protective Order.
10. Notwithstandingthe provisions of paragraphs 7, 8, and 9of this Order, nothing in
this Order:
a. limits a Producing Party’s use ordisclosureof its own information
designated as Confidential or Highly Confidential;
b. prevents disclosure of Confidential or Highly Confidential
information to any current employee of the Producing Party that designated that information as
Confidential orHighly Confidential;
c. prevents disclosure of Confidential or Highly Confidential
information with the consent of the Producing Party that designated the Confidential or Highly
Confidential information; or
d. prevents disclosure by a Party of Confidential or Highly
Confidential information (i) that is or has become publicly known through no fault of that Party;
(ii) that is lawfully acquired by or known to that Party independent of receipt in discovery in this
action; (iii) previously produced, disclosed, and/or provided to that Party without an obligation
of confidentiality and not by inadvertence or mistake; or (iv) pursuant to an order of this Court.
11. With respect to any subpoena served in accordance with Federal Rule of Civil
Procedure 45, the following shall apply:
a. Upon receiving notice and a copy of any subpoena to be served in this
case, as required by Fed R. Civ. P. 45(a)(4), any party (the “Informing
Party”) may, within five (5)business days of such notice, inform the
party serving the subpoena and all other parties that documents produced
in response to that subpoena may reasonably be expected to contain
information that qualifies as Confidential or Highly Confidential under
this Protective Order, and provide a general description of the documents
expected to contain information that qualifies as Confidential or Highly
Confidential. In that event,or in the event that the party serving the
subpoena informs the other parties that documents received from a third
party may reasonably be expected to contain information that qualifies as
Confidential or Highly Confidential at the time it provides the other
parties with copies under Section 11(b) of this Protective Order, all
parties being so informed shall treat all documents produced in response
to the subpoena as Highly Confidential from the time they receive such
documents until 30 calendar days afterthe party serving the subpoena
provides copies under Section 11(b) of this Protective Order. The
Informing Party and the party serving the subpoena shall have a period of
30 calendar days from the time the party serving the subpoena provides
such documents under Section 11(b) of this Protective Order during
which to designate any part of the third-Party production as Confidential
or Highly Confidential under this Protective Order. For purposes of this
paragraph, if the thirtieth calendar days falls on a weekend orholiday, the
applicable deadline shall be the next business day. Any such designation
may be challenged under the provisions provided for in Section 15 of this
Protective Order. Upon request, any party making designations under this
Sectionshall provide the parties with stamped copies of the documents so
designated, in accordance with the provisions provided for in Section 3 of
this Protective Order.
b. Whether or not a party informs the party serving a subpoena as provided
in Section 11(a) of this Protective Order, any party serving a subpoena in
this case will promptly provide, within two business days, the other
parties with a copy of all material produced by the third party in response
to the subpoena (including a copy of the third-party’s writtenresponses or
objections, if any). If the party serving the subpoena is unable to provide
the other parties with a copy of all materials produced by the third party
within two business days, the party serving the subpoena shall
immediately notify the otherparties in writing.
12. This Order binds the Parties and certain others to treat as Confidential or Highly
Confidential any Discovery Material so classified. The Court has not, however, made any
finding regarding the confidentiality of any Discovery Material,and retains full discretion to
determine whether to afford confidential treatment to any Discovery Material designated as
Confidential or Highly Confidential hereunder. All Parties and persons are placed on notice that
the Court is unlikely to seal or otherwise afford confidential treatment to any Discovery
Material introduced into evidence at trial, even if such material has previously been sealed or
designated as Confidential or Highly Confidential.
13. In filing Confidential Discovery Material or Highly Confidential Discovery
Material with this Court, or filing portions of any pleadings, motions, or other papers that
disclose such Confidential Discovery Material or Highly Confidential Discovery Material
(“Confidential Court Submission”), the Parties shall publicly file a redacted copy of the
Confidential Court Submission via the Electronic Case Filing System. In accordance with Rule
4(A) of theCourt’s Individual Rules of Practice in Civil Cases, the Parties shall file an
unredactedcopy of the Confidential Court Submission under seal with the Clerk of this Court,
and the Parties shall serve this Court and opposing counsel with unredacted courtesy copies of
the Confidential Court Submission. In accordance with Rule 4(A) of this Court’s Individual
Rules of Practice in Civil Cases, any Party that seeks to file Confidential Discovery Material
under seal must file an application and supporting declaration justifying—on a particularized
basis—the sealing of such documents. The Parties should be aware that the Court will unseal
documents if it is unable to make “specific, on the record findings . . . demonstrating that
closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006).
14. Disclosure of Confidential Discovery Material or Highly Confidential Discovery
Material beyond the terms of this Protective Order may be made only if the Producing Party
designating the material as “Confidential”or “Highly Confidential” consents in writing to such
disclosure, or if the Court, after reasonable written notice to all affected parties, orders such
disclosure.Counsel for the person receiving Confidential Discovery Material or Highly
Confidential Discovery Material must provide a copy of this Order to such person, who must
sign a Non-Disclosure Agreement in the form annexed as Exhibit A hereto stating that he or she
has read this Order and agrees to be bound by its terms.Said counsel must retain each signed
Non-Disclosure Agreement, hold it in escrow, and produce it to opposing counsel either before
such person is permitted to testify (at deposition or trial) or at the conclusion of the case,
whichever comes first.
15. Any Party who objects to adesignation of Confidential or Highly Confidential
may at any time before the trial of this action serve upon counsel for the Producing Party a
written notice stating with particularity the grounds of the objection. The Parties shall meet and
confer, or hold multiple meet-and-confers,in an attempt to resolve the dispute without Court
intervention within five (5)business days after receipt of the written notice. If the Parties cannot
reach agreement,any Party may serve written noticeupon counsel for the Parties stating that the
Parties have reached a discovery impasse. Counsel for all affected Parties will then submit a
joint letter to this Court outlining their respective positions on the discovery dispute within
seven (7) business days of written notice of thediscovery impasse. The Parties will otherwise
address their dispute to this Court in accordance with paragraph 2(C)of this Court’s Individual
Practices.
16. Recipients of Confidential Discovery Material or Highly Confidential Discovery
Material under this Order may use such material solely for the prosecution and defense of this
action and any appeals thereto, and not for any other purpose or in any other litigation
proceeding. Nothing contained in this Order, however, will affect or restrict the rights of any
Party with respect to its own documents or information produced in this action.
17. Nothing in this Order will prevent any Party from producing any Confidential
Discovery Material or Highly Confidential Discovery Material in its possession in response to a
lawful subpoena or other compulsory process, or if required to produce by law or by any
government agency having jurisdiction, provided that such Party gives written notice to the
Producing Party as soon as reasonably possible, and if permitted by the time allowed under the
request, at least 10 days before any disclosure. Upon receiving such notice, the Producing Party
will bear the burden to oppose compliance with the subpoena, other compulsory process, or
other legal notice if the Producing Party deems it appropriate to do so.
18. Each person who has access to Discovery Material designated as Confidential or
Highly Confidential pursuant to this Order must take all due precautions to prevent the
unauthorized or inadvertent disclosure of such material.
19. Within 60 days of the final disposition of this action—including all appeals—all
recipients of Confidential Discovery Material or Highly Confidential Discovery Material must
either return the Confidential Discovery Material or Highly Confidential Discovery Material—
including all copies thereof—to the Producing Party, or destroy such material—including all
copies thereof. In either event, by the 60-day deadline, the recipient must certify its return or
destruction by submitting a written certification to the Producing Party that affirms that it has
not retained any copies, abstracts, compilations, summaries, or other forms of reproducing or
capturing any of the Confidential Discovery Material or Highly Confidential Discovery
Material. Notwithstanding this provision,the attorneys that the Parties have specifically retained
for this action may retain an archival copy of all pleadings, motion papers, transcripts, expert
reports, legal memoranda, correspondence, or attorney work product, even if such materials
contain Confidential Discovery Material or Highly Confidential Discovery Material. Any such
archival copies that contain or constitute Confidential Discovery Material or Highly
Confidential Discovery Material remain subject to this Order.
20. This Order will survive the termination of the litigation and will continue to be
binding upon all persons subject to this Order to whom Confidential Discovery Material or
Highly Confidential Discovery Material is produced or disclosed.
21. This Court will retain jurisdiction over all persons subject to this Order to the
extent necessary to enforce any obligations arising hereunder or to impose sanctions for any
contempt thereof.
SO STIPULATED AND AGREED.
DATED this 1st day of November, 2021
HAGENS BERMAN SOBOL SHAPIRO LLP
By: /s/ Steve W. Berman
Steve W. Berman (pro hac vice)
Barbara A. Mahoney (pro hac vice)
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: 206-623-7292
Facsimile: 206-623-0594
steve@hbsslaw.com
barbaram@hbsslaw.com
Interim Lead counsel for the proposed Class,
attorneys for Plaintiffs Shannon Fremgen, Mary
Christopherson-Juve, Denise Deleon, Sandra
Wilde, Michael Wilder
WILLIAMS & CONNOLLY LLP
By: /s/ John E. Schmidtlein
John E. Schmidtlein
Jonathan B. Pitt (#JP0621)
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
jschmidtlein@wc.com
jpitt@wc.com
Attorneys for Defendant Amazon.com, Inc.
FRESHFIELDS BRUCKHAUS DERINGER US
LLP
By: /s/ Rich Snyder
Rich Snyder
700 13th Street, N.W., 10th Floor.
Washington, DC 20005
Telephone: (202) 777-4565
Facsimile: (202) 507-5965
richard.snyder@freshfields.com
Attorneys for Defendant Hachette Book Group
ARNOLD & PORTER KAYE SCHOLER LLP
By: /s/ C. Scott Lent
C. Scott Lent
250 West 55th Street
New York, NY 10019
Telephone: (212) 836-8220
Facsimile: (212) 836-8689
scott.lent@arnoldporter.com
Attorney for Defendant HarperCollins Publishers
LLC
CADWALADER, WICKERSHAM & TAFT LLP
By: /s/ Joel Mitnick
Joel Mitnick
Zachary P. Schrieber
200 Liberty Street
New York, NY 10281
Telephone: (212) 504-6555
Facsimile: (212) 504-6666
joel.mitnick@cwt.com
zack.schrieber@cwt.com
Counsel for Defendant Macmillan Publishing
Group, LLC
ARNOLD & PORTER KAYE SCHOLER LLP
By: /s/ Jennifer B. Patterson
Jennifer B. Patterson
Saul P. Morgenstern
250 West 55th Street
New York, NY 10019
Telephone: (212) 836-7210
Facsimile: (212) 836-8689
saul.morgenstern@arnoldporter.com
jennifer.patterson@arnoldporter.com
Attorneys for Defendant Penguin Random House
LLC
WEIL, GOTSHAL & MANGES LLP
By: /s/ Yehudah L. Buchweitz
Yehudah L. Buchweitz
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8256
Facsimile: (212) 310-8007
yehudah.buchweitz@weil.com
Jeff L. White
2001 M Street, N.W.
Washington, DC 20036
Telephone: (202) 682-7059
Facsimile: (202) 857-0940
jeff.white@weil.com
Attorneys for Defendant Simon & Schuster, Inc.
SO ORDERED.
Dated: 4/15/2022 lilt Je
New York, New York HONORARY-DEBRA-C, FREEMAN
DEBRA FREEMAN, U.S. Magistrate Judge
Agreement and Protective Order
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OFNEW YORK
IN RE AMAZON.COM, INC. EBOOK
No. 1:21-cv-00351-GHW-DCF
ANTITRUST LITIGATION
NON-DISCLOSURE AGREEMENT
I, _______________________________, acknowledge that I have read and understand
the Protective Order in this action governing the non-disclosure of those portions of Discovery
Material that have been designated as Confidential. I agree that I will not disclose such
Confidential Discovery Material to anyone other than for purposes of this litigation and that at
the conclusion of the litigation I will return all discovery information to the Party or attorney
from whom I received it. By acknowledging these obligations under the Protective Order, I
understand that I am submitting myself to the jurisdiction of the United States District Court for
the Southern District of New York for the purpose ofany issue or dispute arising hereunder and
that my willful violation of any term of the Protective Order could subject me to punishment for
contempt of Court.
______________________________
Name:
Date: