The opinion
DOCUMENT
ELECTRONICALLY FILED
IN THE UNITED STATES DISTRICT ff DOC #:
FOR THE SOUTHERN DISTRICT OF } if DATE FILED: 4/20/2023
ROBIN WEEKS, individually and on behalf Case No. 1:22-cv-09223-AT
of all others similarly situated,
Plaintiff Judge Analisa Torres
v.
AUTHENTIC BRANDS GROUP, INC.,
Defendant.
STIPULATION AND PROPOSED PROTECTIVE ORDER
Plaintiff Robin Weeks, individually and on behalf of all others similarly situated
(‘Plaintiff’) and Defendant Authentic Brands Group Inc. (“Defendant”) (such Plaintiff and
Defendant, individually, a “Party,” and collectively, the “Parties”) have agreed to the following
terms of confidentiality, and the Court having found that good cause exists for issuance of an
appropriately tailored confidentiality order governing the production of information in this action,
it is hereby ORDERED that any person or entity (“Person”) subject to this order (the “Order”)—
including, without limitation, the parties to this action, their representatives, agents, experts,
consultants, all non-parties providing discovery in this action, and all other interested Persons with
actual or constructive notice of the Order—shall adhere to the following terms:
1. All information of any kind provided in the course of discovery in this action,
including without limitation documents, written discovery responses, deposition testimony, and
tangible non-documentary material shall hereinafter be referred to as “Discovery Material.” Any
person subject to this Order who receives any Discovery Material from any other Person, including
any Party to this action, shall not disclose said Discovery Material to anyone else except as
expressly permitted hereunder.
2. All Discovery Material produced or disclosed in connection with this action shall
be used solely for the prosecution or the defense of the above-captioned action bearing case
number 22-cv-09223-AT (including used in amended pleadings, and any appeals) and for no other
purpose, including use in any other legal actions, present or future.
3. The Person producing any given Discovery Material may designate as
“Confidential” any Discovery Material (herein, “Confidential Discovery Material”) that consists
of:
a. research, testing and development;
b. business and marketing strategy, analysis, and/or plans;
c. commercial information and communications;
d. nonpublic financial information and projections;
e. risk assessment and analysis;
f. trade secrets, proprietary business records, and intellectual property;
g. supplier and customer lists or information;
h. cost, pricing, sales, production, and/or manufacturing data;
i. any information of a personal or intimate nature regarding any individual;
j. any other information that a party is obligated to preserve as confidential, to
include information for which applicable law—foreign or domestic—requires
confidential treatment;
k. all information compiled, derived, excerpted, or generated from such materials
described in Sections 3(a)-(j); or
l. any other category of information hereinafter given confidential status by the
Court.
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4. With respect to Confidential Discovery Material other than deposition transcripts
and exhibits, the producing Person or that Person’s counsel may designate such Discovery Material
as “Confidential” by stamping or otherwise clearly marking “Confidential” on the Discovery
Material in a manner that will not interfere with the Discovery Material’s legibility, audibility,
and/or integrity. Deposition testimony and exhibits may be designated as Confidential either on
the record during the deposition or within thirty (30) days of receipt of the final transcript. Until
such time period expires without designation having been made, the entire deposition transcript
and exhibits shall be treated as Confidential Discovery Material unless otherwise specified in
writing or on the record of the deposition by the producing Person. If the producing Person
designates the entire deposition transcript and/or exhibits, or any portion thereof, as Confidential,
the designated portions of the transcript and/or exhibits shall be bound in a separate volume and
marked “Confidential Information Governed by Protective Order” by the reporter.
5. Any Court reporter or videographer who transcribes or videotapes testimony at a
deposition in this action containing Confidential shall: (a) treat copies of any transcript, reporter’s
notes, videotapes, or any other transcription records as Confidential Discovery Material, and
(b)deliver any transcript containing Confidential Discovery Material only to counsel, the witness,
or the Court (filed under seal). A Party who notices a deposition shall be responsible for notifying
any court reporter or videographer of the existence of this Order.
6. During a deposition, only Persons to whom disclosure of Confidential Discovery
Material is permitted under paragraph 9 of this Order shall remain present while Confidential
Discovery Material is being used or discussed. If, during the course of a deposition, the response
to a question would require the witness to disclose Confidential Discovery Material, the witness
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may assert the confidentiality of the material as a basis for refusing to answer only if a Person not
authorized under, respectively, paragraph 9 of this Order, is present.
7. If at any time prior to the trial of this action, a Person—other than the Person who
produced and originally designated such material—believes that some portions(s) of Discovery
Material were improperly designated as Confidential Discovery Material or that it should have
been designated as Confidential Discovery Material, that Party may notify all Parties and the
producing Person in writing. If the notifying Person believes that the Discovery Material should
have been designated as Confidential Discovery Material, then that material shall be treated as
Confidential Discovery Material until any dispute about the proper designation is resolved. In
addition, the producing Person and the Person seeking a new designation will consult and attempt
to agree upon the proper designation. If they are unable to resolve any dispute about the proper
designation of such Discovery Material, counsel for all affected Persons shall schedule a call with
the Court consistent with Section II.C of the Court’s Individual Rules of Practice in Civil Cases.
The producing Person shall provide to each other party replacement versions of such Discovery
Material that bears the new designation within ten (10) business days of agreement upon such
designation or resolution by the Court of any dispute or, in the case of voluminous material or
other exceptional circumstances, as soon as is practicable.
8. If at any time prior to the trial of this action, a producing Person realizes that some
portion(s) of Discovery Material it previously produced was not properly designated (including
being subject to a less restrictive designation), it may correct the designation by notifying all
Parties in writing, and such designated portion(s) of the Discovery Material will thereafter be
treated pursuant to the replacement designation. In addition, the producing Person shall provide
all Parties with replacement versions of such Discovery Material that bear the replacement
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designation within ten (10) business days of providing such notice, or, in the case of voluminous
material or other exceptional circumstances, as soon as is practicable.
9. No Confidential Discovery Material shall be disclosed, summarized, described,
characterized or otherwise communicated or made available to any Person (other than the
Producing Person), except to the following Persons and only to the extent reasonably necessary to
prosecute and defend this action:
a. the Parties to this action, including a director, officer, employee, trustee, or
agent or representative of a Party charged with the responsibility for making
decisions dealing directly with the resolution of this action, and any insurer or
indemnitor of a Party to this action, and with respect to Discovery Material
designated as Confidential that was produced by a non-party, also to such non-
party;
b. the Parties’ outside counsel and in-house counsel participating in the
prosecution and defense of this matter in their roles as lawyers, including any
paralegal, translator, investigative personnel, administrative assistant and/or
other assistant employed by such counsel and involved in this matter;
c. as to any document, any Person who is an employee of the producing Party, its
author, its addressee, any other Person indicated on the face of the document as
having received a copy, or a former employee of the producing Party (if he or
she was employed by the producing Party when the document was created, and
if he or she has executed the Non-Disclosure Agreement annexed as Exhibit A
hereto);
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d. any witness who has been subpoenaed or otherwise called to testify at trial,
hearing or deposition in this action (and their counsel), while on the record and
in the course of such trial, hearing, or deposition, provided such Person has,
prior to disclosure, been advised of the contents of this Order;
e. any witness who counsel for a Party in good faith believes may be called to
testify at trial, hearing or deposition in this action (and their counsel), provided
such Person has, prior to disclosure, been advised of the contents of this Order
and such Person has first executed a Non-Disclosure Agreement in the form
annexed as Exhibit A hereto;
f. any Person retained by a Party to serve as an expert witness or otherwise
provide specialized advice to counsel in connection with this action, provided
such Person has first executed a Non-Disclosure Agreement in the form
annexed as an Exhibit A hereto;
g. stenographers engaged to transcribe depositions conducted in this action,
provided such Person has, prior to disclosure, been advised of the contents of
this Order;
h. independent photocopying, graphic production services, or litigation support
services employed by the parties or their counsel to assist in this action and
computer service personnel performing duties in relation to a computerized
litigation system;
i. the Court and its support personnel; and
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j. any other Person whom the producing Person, or other Person designating the
Discovery Material Confidential, agrees in writing may have access to such
Discovery Material.
10. Nothing in this Order will bar or otherwise restrict an attorney from rendering
advice to his or her client with respect to this action or from relying upon or generally referring to
Confidential Discovery Material in rendering such advice; provided, however, that, in rendering
such advice or in otherwise communicating with his or her client, the attorney shall not reveal or
disclose the specific content of Discovery Material if such disclosure is not otherwise permitted
under this Order.
11. Nothing in this Order shall limit a producing Person’s rights concerning the
Discovery Material it produces.
12. Prior to any disclosure of any Confidential Discovery Material to any Person
referred to in subparagraphs 9(c), (e), and (f) above, such Person shall be provided by counsel with
a copy of this Order and shall sign a Non-Disclosure Agreement in the form annexed as Exhibit A
hereto stating that that Person has read this Order and agrees to be bound by its terms. Said counsel
shall retain each signed Non-Disclosure Agreement, and, upon written request, shall produce it to
counsel for the producing or designating party prior to such Person being permitted to testify (at
deposition, hearing or trial).
13. All Confidential Discovery Material filed with the Court, and all portions of
pleadings, motions or other papers filed with the Court that disclose such Confidential Discovery
Material, shall be filed under seal with the Clerk of the Court and kept under seal until further
Order of the Court. To the extent that any document subject to a confidentiality designation is
referred to, attached to, or included in a court filing, the party submitting that filing shall serve
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counsel for the producing Person or other Person designating the Discovery Material with a copy
of the filing at the time the filing under seal is made. Within five (5) business days of the filing
under seal, the producing Person, or other Person designating the Discovery Material, (i) shall
inform all parties of any changes that Person elects to make to the confidentiality treatment of the
documents filed under seal, and (ii) to the extent that any document filed under seal contains
material that any Person continues to designate as Confidential, that Person shall cooperate with
the filing party to provide a statement of why sealing is appropriate in light of the presumption of
access discussed in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006).
Within ten (10) business days of the filing under seal, the filing party shall file a redacted version
of the sealed filing on ECF and shall submit one statement to the Court containing any statements
from producing Persons, or other Persons designating the Discovery Material, on why sealing the
redacted material is appropriate. The parties will make reasonable efforts to minimize such sealing.
14. Each Person who has access to Discovery Material produced by others that has been
designated as Confidential shall undertake its best efforts to prevent unauthorized or inadvertent
disclosure of such material.
15. If, in connection with this action, a producing Person claims that it has inadvertently
produced Discovery Material that is subject to a claim of privilege, protection, or immunity,
including without limitation attorney-client privilege, attorney work product protection, common
interest privilege, and joint defense privilege (“Inadvertently Disclosed Information”), such
disclosure, in itself, shall not constitute or be deemed a waiver or forfeiture of any claim of
privilege or protection with respect to the Inadvertently Disclosed Information or its subject matter.
16. The producing Person retains the burden of establishing the privileged or protected
nature of any Inadvertently Disclosed Information. A producing Person making a claim of
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inadvertent disclosure shall do so in writing. Upon receiving such a written notification, the
receiving party immediately shall return or destroy all copies of the Inadvertently Disclosed
Information, and provide a written certification of counsel that all such information has been
returned or destroyed within ten (10) business days of receipt of the request, unless the receiving
party provides notice of its intent to challenge the assertion of a claim of protection under Fed. R.
Civ. P. 26(b)(5) through a Challenge Notice, described below. However, the receiving party may
request a reasonable extension of the deadline for the return or destruction of Inadvertently
Disclosed Information due to the volume of such material, and such extension shall not be
unreasonably withheld.
17. Within three (3) business days of such written notification of any Inadvertently
Disclosed Information, the producing Person shall produce a privilege log with respect to the
Inadvertently Disclosed Information. However, the producing Person may request a reasonable
extension of the deadline for the production of such privilege log due to the volume of such
material, and such extension shall not be unreasonably withheld.
18. Challenge Notice Process:
a. The receiving party shall only be entitled to make a Challenge Notice when it
has reviewed the Inadvertently Disclosed Information and incorporated such
information into its work product prior to receiving written notification of the
Inadvertently Disclosed Information from the producing Person.
b. For any Challenge Notice, the challenge must be made within three (3) business
days of receiving the privilege log from the producing Person that corresponds
to written claim of inadvertent disclosure from the producing Person. However,
the receiving party may request a reasonable extension of the deadline to file a
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Challenge Notice due to the volume of such material, and such extension shall
not be unreasonably withheld.
c. A receiving Party who makes such a Challenge Notice may retain no more
copies (the “Retained Copies”) of the disclosed material than are sufficient to
prosecute its challenge to the assertion of protection. Moreover, in the event a
Challenge Notice is provided, the receiving party shall sequester and make no
other use of the Inadvertently Disclosed Information subject to the request for
return and destruction other than as set forth below in subsection (d), until the
Challenge Notice is resolved.
d. The receiving Party and the producing Person shall meet and confer on the
Inadvertently Disclosed Information within three (3) business days from when
the Challenge Notice is issued. If, upon meeting and conferring, the parties are
unable to resolve the issue surrounding the Inadvertently Disclosed
Information, the parties shall schedule a call with the Court consistent with
Section II(C) of the Court’s Individual Rules of Practice in Civil Cases and
endeavor to do so within three (3) business days after the completion of the
meet and confer process. The parties will abide by any direction and/or order
given by the Court to determine how the parties should proceed to resolve the
issues raised by the Inadvertently Disclosed Information. To the extent the
Court requests any written submissions, the parties have the obligation to
submit the Inadvertently Disclosed Information to the Court for in camera
review in connection with such challenge. Any motion or other communication
with the Court regarding Inadvertently Disclosed Information shall be filed
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under seal, and shall not assert as a ground for entering an order to compel the
fact or circumstances of the inadvertent production.
19. Nothing in this Order shall be construed as restricting the right of any Party to make
a challenge to a claim of privilege at any time permissible under the Federal Rules of Civil
Procedure and other relevant laws based on information contained in the corresponding privilege
log. In challenges not involving either Inadvertently Disclosed Information or any Challenge
Notice, the parties shall be required to meet and confer in the normal course and raise any disputes
in accordance with Section II(C) of the Court’s Individual Rules of Practice in Civil Cases.
20. In the event a non-party has produced information in response to a subpoena, any
Party receiving such information from the non-party shall ensure that all other parties receive
copies of the non-party’s production within five (5) business days of the receiving party’s receipt
of such production, or in the case of voluminous material or other exceptional circumstances, the
party receiving such information from the non-party shall notify all other parties of its receipt of
such production within three (3) business days, and shall provide copies of the non-party
production to all other Parties as soon as practicable.
21. A non-party from whom the Parties seek discovery may designate Discovery
Material it produces to a party to this action as “Confidential” consistent with the terms of this
Order. In such circumstances, Discovery Material designated as Confidential by a non-party shall
be assigned the same protection as Discovery Material so designated by a party, and all duties
applicable to a Party under this Order shall apply to a non- party designating Discovery Material
as Confidential. All obligations applicable under this Order to parties receiving Discovery Material
shall apply to any party receiving Discovery Material from such non-party. Any Party who serves
a subpoena on a non- party shall provide such non-party with a copy of this Order.
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22. If, at any time, any Discovery Material governed by this Order is subpoenaed or
requested by any court, administrative or legislative body, or by any other Person purporting to
have authority to require the production thereof, the Person to whom the subpoena or request is
directed shall, to the extent permitted by law, promptly give written notice to the producing Person
and include with that notice a copy of the subpoena or request. To the extent permitted by law, the
Person to whom the subpoena or request is directed also shall not produce documents for at least
fourteen (14) days after notice of the subpoena is provided to the producing Person in order to
provide the producing Person a reasonable period of time in which to seek to quash, limit or object
to the subpoena or request, or to move for any protection for the Discovery Material. If the Person
to whom the subpoena or request is directed is compelled by applicable law or a court order to
respond to the subpoena or request in less than fourteen (14) days, the Person to whom the
subpoena or request is directed shall, to the extent permitted by law, notify the producing Person
of this fact. In no event shall such Discovery Material subject to this Order be produced by a Person
receiving a subpoena or request without providing the producing Person an opportunity to quash,
limit or object, absent a court order to do so or as otherwise required by law. In the event that
Discovery Material designated as “Confidential” under this Order is produced in response to a
subpoena or request, the recipient of the subpoena or request shall take commercially reasonable
steps to ensure that the protections afforded under this Order shall continue to apply to such
Discovery Material.
23. To the extent that a Person producing Discovery Material previously produced any
portion of that material to another party in another litigation, that Person may designate previously
produced collections of documents that by their nature contain Confidential Discovery Material
with the appropriate designation, notwithstanding that some of the documents within the collection
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may not qualify for such designation. The receiving Party may, pursuant to the procedures set forth
in paragraphs 7 and 8, challenge the designation of one or more particular documents on the
grounds that it does not or they do not qualify for protection, or does not or do not qualify for the
level of protection asserted.
24. The undersigned agree to meet and confer concerning the use of any Confidential
Discovery Material at hearings or at the trial of this action as soon as practicable prior to any such
hearing or trial, but, in any event, not fewer than twenty-four (24) hours in advance of the hearing
or trial. The use of Confidential Discovery Material at hearings or at trial shall not cause such
Confidential Discovery Material to lose its status as Confidential Discovery Material.
25. Upon written request of the producing Person, after the final conclusion of all
aspects of this action by judgment not subject to further appeal or by settlement, all Confidential
Discovery Material, and all copies of such material, shall be returned or destroyed by the receiving
Person within forty-five (45) days, and so certified in writing within sixty (60) days of the
producing Person’s written request. Notwithstanding any other provision of this Order, the
obligation to return or destroy all Confidential Discovery Material and all copies of such material
upon such written request shall not apply to pleadings, motions, briefs, supporting affidavits, other
papers filed with the Court, attorney notes, deposition transcripts, hearing transcripts, trial
transcripts, exhibits, the trial record (including exhibits), Court opinions or orders, attorney-client
privileged material, and/or work product created by counsel, a Party, or a third party in connection
with this litigation, which reflect, summarize, or otherwise refer to Confidential Discovery
Material, and copies thereof retained by counsel, so long as the Person retaining such material
otherwise complies with this Order with respect to such retained material.
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26. This Order is governed by, interpreted under, and construed and enforced in
accordance with New York law, without regard to the conflict of law principles of the State of
New York. Any dispute between the parties regarding this Order shall be resolved by making an
appropriate application to this Court in accordance with its rules.
27. Nothing herein shall preclude any Party from seeking modification of this Order or
additional protection for particular documents for good cause.
28. By stipulating to the entry of this Order, no Party is agreeing to produce any
particular documents, categories of documents, or information, or otherwise waiving any right it
otherwise would have to object to disclosing or producing any information or item on any ground
not addressed in this Order. Similarly, no party waives any right to object on any ground to the
admussibility or use in evidence of any of the material covered by this Order.
29. This Stipulation and Order may be executed in counterparts.
SO STIPULATED AND AGREED.
Dated: April 19, 2023
By: /s/Spencer Sheehan By: /s/Andrew Ritys Davies
Spencer Sheehan Andrew Rhys Davies
Theodore Hillebrand WILMER CUTLER PICKERING
SHEEHAN AND ASSOCIATES P.C. HALE AND Dorr LLP
60 Cuttermill Rd Ste 412 7 World Trade Center
Great Neck, NY 11021 250 Greenwich Street
516-268-7080 New York, NY 10007
spencer(@spencersheehan.com 212-230-8800
thillebrand@spencersheehan.com Andrew.Davies@wilmerhale.com
Counsel for Plaintiff Counsel for Defendant
Robin Weeks, et al. Authentic Brands Group, Inc.
SO ORDERED.
Dated: April 20, 2023 ANALISA TORRES
New York, New York United States District Judge