Opinion

In Re Laundress Marketing and Product Liability Litigation

Court
District Court, S.D. New York
Filed
Jun 11, 2024
Cited by
0 cases
Authority
More cited than 31.7%

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

In Re Laundress Marketing and Product Master Docket No.: 1:22-cv-10667-JMF

Liability Litigation

This Document Relates to: All Actions

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER

WHEREAS, Rule 7(A) of this Court’s Individual Rules and Practices in

Civil Cases governs “Redactions Not Requiring Court Approval” and this Court’s Rule 7(B)

governs “Redactions and Sealed Filings Requiring Court Approval”;

WHEREAS, the parties in the above-captioned consolidated litigation

(collectively the “Parties”1 and individually a “Party”) request that this Court issue a

protective order pursuant to Federal Rule of Civil Procedure 26(c) to protect the

confidentiality of certain additional nonpublic and competitively sensitive information that

is not covered by the materials defined in the Court’s Individual Rule that the parties or

non-parties may need to disclose and/or file in connection with discovery in this action;

WHEREAS, the Parties, through counsel, agree to the following terms; and

WHEREAS, this Court finds good cause exists for issuance of an

appropriately tailored confidentiality order governing the pretrial phase of this action,

1The “Parties” are plaintiffs and defendants in the following actions: Ostenfeld, et al. v. The

Laundress, LLC, 22-CV-10667 (JMF); Sites v. Unilever United States, Inc., et al., 23-CV-4920

(JMF); Safran v. The Laundress, LLC, et al., 24-CV-865 (JMF); Nixon v. The Laundress, LLC,

et al., 24-CV-1630 (JMF); and Macha v. The Laundress, LLC, No. 1:24-cv-2108 (JMF).

IT IS HEREBY ORDERED that any person subject to this Order—

including the Parties to this action (including their respective corporate parents,

successors, and assigns), their representatives, agents, experts and consultants, all non-

parties providing discovery in this action, and all other interested persons with actual or

constructive notice of this Order — will adhere to the following terms, upon pain of

contempt:

1. With respect to “Discovery Material” (i.e., information of any

kind produced or disclosed in the course of discovery in this action) that a person has

designated as “Confidential” pursuant to this Order, no Party or nonparty subject to

this Order may disclose such Confidential Discovery Material to anyone else except as

this Order expressly permits.

2. The Party or nonparty producing or disclosing Discovery

Material (“Producing Party”) may designate as “Confidential” such material or the

portion of such material that it reasonably and in good faith believes is entitled to

confidential treatment under Federal Rule of Civil Procedure 26(c)(1)(G), or is

protected under applicable laws or regulations, including privacy or data protection

laws, or the disclosure of which would be detrimental to the conduct of that Party’s

business or the business of any of the Party’s customers or clients. These may include,

without limitation, documents produced in the case, during formal discovery or

otherwise; information of nonparties which the Producing Party is under an obligation

to maintain in confidence; initial disclosures; answers to interrogatories and responses

to requests for admission or other discovery requests; deposition or hearing transcripts;

affidavits; exhibits; experts’ reports; memoranda of law; and tangible things or objects

that are appropriately designated confidential pursuant to this Discovery Confidentiality

Order. The information contained therein and all copies, abstracts, excerpts, analyses,

notes or other writings that contain, reflect, reveal or otherwise disclose such

confidential information shall also be deemed “Confidential.” For the purposes of the

case, information originally designated as “Confidential” shall not retain that status

after any ruling by the Court denying such status to it. Parties and/or nonparties subject

to this Order shall act in good faith in designating information as “Confidential,” which

in good faith believe consists of:

(a) previously non-disclosed financial information (including without

limitation profitability reports or estimates, percentage fees, design

fees, royalty rates, minimum guarantee payments, sales reports, and

sale margins);

(b) non-public material relating to ownership or control of any non-public

company;

(c) non-public business plans, proprietary business information,

product-development information, or marketing plans;

(d) any information of a personal or intimate nature regarding

any individual;

(e) any non-public information that a party in good faith

determines to be confidential information, trade secrets, or

competitively or commercially sensitive information, and

nonpublic personal information as defined in applicable

data privacy/data protection laws; or

(f) any other category of information this Court subsequently

affords confidential status or the Producing Party believes in

good faith warrants Confidential designation under this Order.

3. With respect to the Confidential portion of any Discovery Material

other than deposition transcripts and exhibits, the Producing Party or its counsel may

designate such portion as “Confidential” by: (a) stamping or otherwise clearly marking as

“Confidential” the protected portion in a manner that will not interfere with legibility or

audibility; and (b) producing for future public use another copy of said Discovery Material

with the confidential information redacted.

4. A Producing Party or its counsel may designate deposition exhibits or

portions of deposition transcripts as Confidential Discovery Material either by: (a)

indicating on the record during the deposition that a question calls for 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 (b) notifying the reporter and all counsel of record, in writing, within 30 days

after the receipt of the rough transcript of the deposition, of the specific pages and lines of

the transcript (and if applicable, exhibits) that are to be designated “Confidential,” in which

case all counsel receiving the transcript will be responsible for marking the copies of the

designated transcript (and if applicable, exhibits) in their possession or under their control as

directed by the Producing Party or that person’s counsel. During the 30-day period

following receipt of the rough transcript, all Parties will treat the entire deposition transcript

and corresponding exhibits as if it had been designated Confidential.

5. The inadvertent failure by a Producing Party to designate

material with the correct confidentiality designation shall not waive any such designation.

If at any time before the trial of this action a Producing Party realizes that it should have

designated as Confidential some portion(s) of Discovery Material that it previously

produced without limitation, the Producing Party may so designate such material by so

apprising all prior recipients in writing, and promptly after providing such notice, producing

re-labeled copies of the material to each Receiving Party reflecting the change in

designation. Thereafter, this Court and all persons subject to this Order will treat such

designated portion(s) of the Discovery Material as Confidential and shall undertake their

best efforts to correct any disclosure of such information contrary to the redesignation,

including retrieving any documents from persons not qualified to receive them under the

redesignation and informing such persons that they should not further use or disseminate the

information thereon.

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. All Confidential Information shall be used by the party receiving

such information (the “Receiving Party”) solely for purposes of the prosecution or defense

of this action, shall not be used by the Receiving party for any business, commercial,

competitive, personal or other purpose, and shall not be disclosed by the Receiving Party to

anyone other than those set forth in Paragraph 8, unless and until the restrictions herein are

removed either by written agreement of counsel for the parties, or by Order of the Court.

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.

8. Discovery Material designated as Confidential may be disclosed

only to the following persons:

a) The Parties to this action, their insurers, and counsel to their insurers;

b) Counsel retained specifically for this action and their associated

attorneys, paralegals and other professional personnel (including support

staff), and service vendors (including outside copying and litigation

support services and e-discovery vendors) who are directly assisting such

counsel in the conduct of this action, are under the supervision or control

of such counsel, and who have been advised by such counsel of their

obligations hereunder;;

c) Outside experts, consultants, vendors or service providers (such as copy-

service providers, deposition stenographers and videographers, and

document-management consultants) retained by outside counsel for

purposes of this action provided such person has first executed a Non-

Disclosure Agreement in the form annexed as an Exhibit hereto;

d) Any mediator or arbitrator that the Parties engage in this matter or that

this Court appoints, provided such person has first executed a Non-

Disclosure Agreement in the form annexed as an Exhibit hereto;

e) Secretarial, paralegal, clerical, duplicating and data processing personnel

employed by the individuals identified in paragraph 9(a) through 9(d)

who have first executed a Non-Disclosure Agreement in the form

annexed as an Exhibit hereto;

f) As to any document, its author, its addressee, and any other person

indicated on the face of the document as having received a copy;

g) Any witness who counsel for a Party in good faith believes may be

called to testify at trial or deposition in this action, provided such person

has first executed a Non-Disclosure Agreement in the form annexed as

an Exhibit hereto; and

h) This Court, including any appellate court, its support personnel, and

court reporters.

9. Before disclosing any Confidential Discovery Material to any person

referred to in subparagraphs 8(c), 8(d), or 8(g) above, counsel must provide a copy of this

Order to such person, who must sign a Non-Disclosure Agreement in the form annexed as an

Exhibit 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.

10. In accordance with Paragraph 7(C) of this Court’s Individual Rules

and Practices in Civil Cases, this Order does not, by itself, authorize the filing of any

document under seal. Any party wishing to file a document designated as Confidential

Information in connection with a motion, brief or other submission to the Court must meet

and confer with any opposing party (or any third party seeking confidential treatment of

the information) in advance to narrow the scope of the request and then seek leave of

Court before filing the relevant motion, brief, or other submission.

11. Nothing in this Order shall be construed to affect the use of any

document, material, or information at any trial or hearing. A party that intends to present or

that anticipates that another party may present Confidential Discovery Material at a hearing

or trial shall bring that issue to the Court’s and parties’ attention by motion or in a pretrial

memorandum without disclosing the Confidential Discovery Material. The Court may

thereafter make such orders as are necessary to govern the use of such documents or

information at trial.

12. Any Party who objects to any designation of confidentiality 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. If the Parties cannot reach

agreement promptly, counsel for all affected Parties will address their dispute to this Court

in accordance with Paragraph 3(E) of this Court’s Individual Rules and Practices in Civil

Cases.

13. Any Party who requests additional limits on disclosure (such as

“attorneys’ eyes only” in extraordinary circumstances), may at any time before the trial of

this action serve upon counsel for the recipient Parties a written notice stating with

particularity the grounds of the request. If the Parties cannot reach agreement promptly,

counsel for all affected Parties will address their dispute to this Court in accordance with

Paragraph 3(E) of this Court’s Individual Rules and Practices in Civil Cases.

14. Recipients of 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 business, commercial, or competitive purpose or in any other

litigation proceeding.

15. Each person who has access to Discovery Material designated as

Confidential pursuant to this Order must take all due precautions to prevent the unauthorized

or inadvertent disclosure of such material.

16. No information that is in the public domain or which is already known

by the Receiving Party through proper means or which is or becomes available to a Party

from a source other than the Party or nonparty asserting confidentiality, rightfully in

possession of such information on a non-confidential basis, shall be deemed or considered

to be Confidential information under this Order.

17. Pursuant to Federal Rule of Civil Procedure 502(d), the disclosure of

privileged information, whether inadvertent or otherwise, shall not constitute a waiver of

the privilege in this matter or any other federal or state proceeding. Upon notice or

discovery that privileged information has been produced, the Receiving Party shall

promptly destroy or return the privileged Discovery Material (and all paper and electronic

copies) to the Producing Party. The Receiving Party shall delete the privileged Discovery

Material from any systems used to house the documents, including document review

databases, e-rooms, and any other location that stores the documents. Within seven days of

the aforementioned deletion or return of privileged Discovery Material, the Producing Party

shall provide the Receiving Party with a privilege log regarding the privileged Discovery

Material. The Receiving Party may move the Court for an order compelling production of

the privileged Discovery Material, which shall be filed under seal, and the motion shall not

assert as a ground for entering such an order the fact or circumstances of the production.

The Receiving Party may make no use of the privileged Discovery Material during any

aspect of this matter or any other matter, including in depositions or at trial, unless the

documents are later designated by a court as not privileged or protected. This Order shall be

interpreted to provide the maximum protection allowed by Federal Rule of Evidence

502(d), and other applicable laws and regulations.

18. The Producing Party retains the burden of establishing the privileged

or protected nature of any Discovery Material subject to a claim of privilege. Nothing in

this Order shall limit the right of any party to request an in camera review of any Discovery

Material subject to a claim of privilege by the Producing Party.

19. Notwithstanding the provisions of this Order, any of the Parties

may redact from any document, whether or not designated Confidential Information

under this Order, any information that is subject to a valid claim of privilege or work-

product immunity, provided that the party expressly makes that claim and provides the

basis therefor, in accordance with Fed. R. Civ. P. 26(b)(5).

20. Within 60 days of the final disposition of this action—including all

appeals – all recipients of Confidential Discovery Material must either return it—including

all copies thereof – to the Producing Party, or, upon permission of the Producing Party,

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. 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. Any such archival copies

that contain or constitute Confidential Discovery Material remain subject to this Order.

21. This Order will survive the termination of the litigation and will

continue to be binding upon all persons to whom Confidential Discovery Material is

produced or disclosed.

22. 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.

SQUITIERI & FEARON, LLP WINSTON & STRAWN LLP

By: /s/ Stephen J. Fearon, Jr. By: /s/Ronald Y. Rothstein

Stephen J. Fearon, Jr.

Ronald Y. Rothstein

305 Broadway, 7th Floor

35 West Wacker Drive

New York, New York 10007

Chicago, IL 60601

Telephone: (212) 421-6492

Telephone: (312) 558-5600

Facsimile: (212) 421-6553

Facsimile: (312) 558-5700

Email: stephen@sfclasslaw.com

rrothste@winston.com

Attorneys for Ostenfeld Plaintiffs

Attorneys for Defendants

WILLIAMS CEDAR LLC SWANSON, MARTIN & BELL, LLP

By: /s/ Dylan T. Hastings By: /s/ Michael A. McCaskey

Dylan T. Hastings, Esquire Michael A. McCaskey

One South Broad Street

330 N. Wabash Avenue, Suite 3300

Suite 1510

Chicago, Illinois

Philadelphia, PA 19107

Phone: 215-557-0099 60611 (312) 321-

Facsimile: 215-557-0673 9100

dhastings@williamscedar.com (312)321-0990 – Fax

mmccaskey@smbtrials.com

Attorneys for Sites Plaintiffs

Attorneys for Safran Defendants

JOHNSON BECKER, PLLC

By: /s/ Adam J. Kress, Esq.

Adam J. Kress, Esq.

444 Cedar Street, Suite 1800

St. Paul, MN 55101

(612)436-1800 / (612) 436-1801 (f)

akress@johnsonbecker.com

Attorneys for Nixon Plaintiff

GALLAGHER LAW OFFICE, LLC

By: /s/ Michael L. Gallagher

Michael L. Gallagher

161 N. Clark Street, Suite 3050

Chicago, IL 60601 (312) 910-5050

mlg@gallagherinjurylaw.com

Attorneys for Safran Plaintiff

VLADIMIR TSIRKIN AND

ASSOCIATES, PA

By: /s/ Vladimir Tsirkin

Vladimir Tsirkin

800 SE 4th Ave, Ste 620

Hallandale Beach, FL 33009

305-831-4333

Fax: 732-525-2202

Email: vtsirkin@spetslaw.com

Attorneys for Macha Plaintiffs

Dated: ___ June 11 , 2024 SO ORDERED

Ay

(oy IMA

Hon. JesseM. Furmap~

United SfAtes District Judge

This stipulation binds the parties to treat as confidential the documents so classified. This Court,

however, has not reviewed the documents referenced herein; therefore, by so ordering this stipulation,

the Court makes no finding as to whether the documents are confidential. That finding will be made, if

ever, upon a document-by-document review pursuant to the procedures set forth in the Court’s

Individual Rules and Practices and subject to the presumption in favor of public access to “judicial

documents.” See generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir.

2006). To that end, the Court does not “so order” any provision to the extent that it purports to

authorize the parties to file documents under seal without a prior court order. See New York ex rel.

Khurana v. Spherion Corp., No. 15-CV-6605 (JMF), 2019 WL 3294170 (S.D.N.Y. July 19, 2019).

The Clerk of Court is directed to terminate ECF No. 132.

12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

In Re Laundress Marketing and Product Master Docket No.: 1:22-cv-10667-JMF

Liability Litigation

This Document Relates to: All Actions

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 of any 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.

Dated:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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