Teresa Adams v. Starbucks Corporation ( 2020 )

1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership 2 Including Professional Corporations SASCHA HENRY, Cal Bar No. 191914 3 ROBERT J. GUITE, Cal. Bar No. 244590 shenry@sheppardmullin.com 4 rguite@sheppardmullin.com 333 South Hope Street, 43rd Floor 5 Los Angeles, CA 90071-1422 Telephone: 213.620.1780 6 Facsimile: 213.620.1398 7 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership 8 Including Professional Corporations ABBY MEYER, Cal. Bar No. 294947 9 ameyer@sheppardmullin.com 650 Town Center Drive, Fourth Floor 10 Costa Mesa, California 92626-1993 Telephone: 714.513.5100 11 Facsimile: 714.513.5130 12 Attorneys for Defendant Starbucks Corporation 13 14 UNITED STATES DISTRICT COURT 15 CENTRAL DISTRICT OF CALIFORNIA 16 17 TERESA ADAMS, individually and on Case No. 8:20-cv-00225-MCS-KES behalf of all others similarly situated, 18 ORDER RE Plaintiffs, STIPULATED PROTECTIVE 19 ORDER v. 20 STARBUCKS CORPORATION, a Action Filed: March 16, 2016 21 Washington corporation, and Does 1- Trial Date: None Set 20, inclusive, 22 Defendants. 23 24 25 26 27 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. The parties further acknowledge, as set forth 11 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 12 file confidential information under seal; Civil Local Rule 79-5 sets forth the 13 procedures that must be followed and the standards that will be applied when a 14 party seeks permission from the court to file material under seal. 15 B. GOOD CAUSE STATEMENT 16 This action is likely to involve recipe or ingredient information; pricing; sales 17 and/or cost data; consumer or market research and possibly other valuable research, 18 development, commercial, financial, technical and/or proprietary information for 19 which special protection from public disclosure and from use for any purpose other 20 than prosecution of this action is warranted. Such confidential and proprietary 21 materials and information consist of, among other things, confidential business or 22 financial information, information regarding confidential business practices, or 23 other confidential research, development, or commercial information, information 24 otherwise generally unavailable to the public, or which may be privileged or 25 otherwise protected from disclosure under state or federal statutes, court rules, case 26 decisions, or common law. Accordingly, to expedite the flow of information, to 27 facilitate the prompt resolution of disputes over confidentiality of discovery 1 confidential, to ensure that the parties are permitted reasonable necessary uses of 2 such material in preparation for and in the conduct of trial, to address their handling 3 at the end of the litigation, and serve the ends of justice, a protective order for such 4 information is justified in this matter. It is the intent of the parties that information 5 will not be designated as confidential for tactical reasons and that nothing be so 6 designated without a good faith belief that it has been maintained in a confidential, 7 non-public manner, and there is good cause why it should not be part of the public 8 record of this case. 9 2. DEFINITIONS 10 2.1 Action: United States District Court case entitled, Teresa Adams, 11 individually and on behalf of all others similarly situated v. Starbucks Corporation, 12 etc.; et al., Case No. 8:20-cv-00225-MCS-KES. 13 2.2 Challenging Party: a Party or Non-Party that challenges the 14 designation of information or items under this Order. 15 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 16 how it is generated, stored or maintained) or tangible things that qualify for 17 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 18 the Good Cause Statement. 19 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 20 their support staff). 21 2.5 Designating Party: a Party or Non-Party that designates information or 22 items that it produces in disclosures or in responses to discovery as 23 “CONFIDENTIAL.” 24 2.6 Disclosure or Discovery Material: all items or information, regardless 25 of the medium or manner in which it is generated, stored, or maintained (including, 26 among other things, testimony, transcripts, and tangible things), that are produced 27 or generated in disclosures or responses to discovery in this matter. 1 2.7 Expert: a person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a Party or its counsel to serve as 3 an expert witness or as a consultant in this Action. 4 2.8 House Counsel: attorneys who are employees of a party to this Action. 5 House Counsel does not include Outside Counsel of Record or any other outside 6 counsel. 7 2.9 Non-Party: any natural person, partnership, corporation, association, or 8 other legal entity not named as a Party to this action. 9 2.10 Outside Counsel of Record: attorneys who are not employees of a 10 party to this Action but are retained to represent or advise a party to this Action and 11 have appeared in this Action on behalf of that party or are affiliated with a law firm 12 which has appeared on behalf of that party, and includes support staff. 13 2.11 Party: any party to this Action, including all of its officers, directors, 14 employees, consultants, retained experts, and Outside Counsel of Record (and their 15 support staffs). 16 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 17 Discovery Material in this Action. 18 2.13 Professional Vendors: persons or entities that provide litigation support 19 services (e.g., photocopying, videotaping, translating, preparing exhibits or 20 demonstrations, and organizing, storing, or retrieving data in any form or medium) 21 and their employees and subcontractors. 22 2.14 Protected Material: any Disclosure or Discovery Material that is 23 designated as “CONFIDENTIAL.” 24 2.15 Receiving Party: a Party that receives Disclosure or Discovery 25 Material from a Producing Party. 26 3. SCOPE 27 The protections conferred by this Stipulation and Order cover not only 1 extracted from Protected Material; (2) all copies, excerpts, summaries, or 2 compilations of Protected Material; and (3) any testimony, conversations, or 3 presentations by Parties or their Counsel that might reveal Protected Material. Any 4 use of Protected Material at trial shall be governed by the orders of the trial judge. 5 This Order does not govern the use of Protected Material at trial. 6 4. DURATION 7 Even after final disposition of this litigation, the confidentiality obligations 8 imposed by this Order shall remain in effect until a Designating Party agrees 9 otherwise in writing or a court order otherwise directs. Final disposition shall be 10 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 11 with or without prejudice; and (2) final judgment herein after the completion and 12 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 13 including the time limits for filing any motions or applications for extension of time 14 pursuant to applicable law. 15 If this case proceeds to trial, all exhibits used at trial that were previously 16 designated as confidential or maintained pursuant to this protective order become 17 public and will be presumptively available to all members of the public, including 18 the press, unless compelling reasons supported by specific factual findings to 19 proceed otherwise are made to the trial judge in advance of the trial. See Kamakana 20 v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) 21 (distinguishing “good cause” showing for sealing documents produced in discovery 22 from “compelling reasons” standard when merits-related documents are part of 23 court record). 24 Even after final disposition of this litigation, the confidentiality obligations 25 imposed by this Order shall remain in effect until a Designating Party agrees 26 otherwise in writing or a court order otherwise directs. Final disposition shall be 27 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 1 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 2 including the time limits for filing any motions or applications for extension of time 3 pursuant to applicable law. 4 5. DESIGNATING PROTECTED MATERIAL 5 5.1 Exercise of Restraint and Care in Designating Material for Protection. 6 Each Party or Non-Party that designates information or items for protection under 7 this Order must take care to limit any such designation to specific material that 8 qualifies under the appropriate standards. The Designating Party must designate for 9 protection only those parts of material, documents, items, or oral or written 10 communications that qualify so that other portions of the material, documents, 11 items, or communications for which protection is not warranted are not swept 12 unjustifiably within the ambit of this Order. 13 Mass, indiscriminate, or routinized designations are prohibited. Designations 14 that are shown to be clearly unjustified or that have been made for an improper 15 purpose (e.g., to unnecessarily encumber the case development process or to impose 16 unnecessary expenses and burdens on other parties) may expose the Designating 17 Party to sanctions. 18 If it comes to a Designating Party’s attention that information or items that it 19 designated for protection do not qualify for protection, that Designating Party must 20 promptly notify all other Parties that it is withdrawing the inapplicable designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in 22 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 23 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 24 under this Order must be clearly so designated before the material is disclosed or 25 produced. Designation in conformity with this Order requires: 26 (a) for information in documentary form (e.g., paper or electronic 27 documents, but excluding transcripts of depositions or other pretrial or trial 1 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 2 contains protected material. If only a portion or portions of the material on a page 3 qualifies for protection, the Producing Party also must clearly identify the protected 4 portion(s) (e.g., by making appropriate markings in the margins). A Party or Non- 5 Party that makes original documents available for inspection need not designate 6 them for protection until after the inspecting Party has indicated which documents it 7 would like copied and produced. During the inspection and before the designation, 8 all of the material made available for inspection shall be deemed 9 “CONFIDENTIAL.” After the inspecting Party has identified the documents it 10 wants copied and produced, the Producing Party must determine which documents, 11 or portions thereof, qualify for protection under this Order. Then, before producing 12 the specified documents, the Producing Party must affix the “CONFIDENTIAL 13 legend” to each page that contains Protected Material. If only a portion or portions 14 of the material on a page qualifies for protection, the Producing Party also must 15 clearly identify the protected portion(s) (e.g., by making appropriate markings in 16 the margins). 17 (b) for testimony given in depositions that the Designating Party identify 18 the Disclosure or Discovery Material on the record, before the close of the 19 deposition all protected testimony. 20 (c) for information produced in some form other than documentary and for 21 any other tangible items, that the Producing Party affix in a prominent place on the 22 exterior of the container or containers in which the information is stored the legend 23 “CONFIDENTIAL.” If only a portion or portions of the information warrants 24 protection, the Producing Party, to the extent practicable, shall identify the 25 protected portion(s). 26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 27 failure to designate qualified information or items does not, standing alone, waive 1 Upon timely correction of a designation, the Receiving Party must make reasonable 2 efforts to assure that the material is treated in accordance with the provisions of this 3 Order. 4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 6 designation of confidentiality at any time that is consistent with the Court’s 7 Scheduling Order. 8 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 9 resolution process under Local Rule 37.1 et seq. 10 6.3 The burden of persuasion in any such challenge proceeding shall be on 11 the Designating Party. Frivolous challenges, and those made for an improper 12 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 13 parties) may expose the Challenging Party to sanctions. Unless the Designating 14 Party has waived or withdrawn the confidentiality designation, all parties shall 15 continue to afford the material in question the level of protection to which it is 16 entitled under the Producing Party’s designation until the Court rules on the 17 challenge. 18 7. ACCESS TO AND USE OF PROTECTED MATERIAL 19 7.1 Basic Principles. A Receiving Party may use Protected Material that is 20 disclosed or produced by another Party or by a Non-Party in connection with this 21 Action only for prosecuting, defending, or attempting to settle this Action. Such 22 Protected Material may be disclosed only to the categories of persons and under the 23 conditions described in this Order. When the Action has been terminated, a 24 Receiving Party must comply with the provisions of section 13 below (FINAL 25 DISPOSITION). Protected Material must be stored and maintained by a Receiving 26 Party at a location and in a secure manner that ensures that access is limited to the 27 persons authorized under this Order. 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 2 otherwise ordered by the court or permitted in writing by the Designating Party, a 3 Receiving Party may disclose any information or item designated 4 “CONFIDENTIAL” only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 6 well as employees of said Outside Counsel of Record to whom it is reasonably 7 necessary to disclose the information for this Action; 8 (b) Experts (as defined in this Order) of the Receiving Party to whom 9 disclosure is reasonably necessary for this Action and who have signed the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 (c) the court and its personnel; 12 (d) court reporters and their staff; 13 (e) professional jury or trial consultants, mock jurors, and Professional 14 Vendors to whom disclosure is reasonably necessary for this Action and who have 15 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 16 (f) the author or recipient of a document containing the information or a 17 custodian or other person who otherwise possessed or knew the information; 18 (g) during their depositions, witnesses ,and attorneys for witnesses, in the 19 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 20 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they 21 will not be permitted to keep any confidential information unless they sign the 22 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 23 agreed by the Designating Party or ordered by the court. Pages of transcribed 24 deposition testimony or exhibits to depositions that reveal Protected Material may 25 be separately bound by the court reporter and may not be disclosed to anyone 26 except as permitted under this Stipulated Protective Order; and 27 (h) any mediator or settlement officer, and their supporting personnel, 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation 4 that compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL,” that Party must: 6 (a) promptly notify in writing the Designating Party. Such notification 7 shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order 9 to issue in the other litigation that some or all of the material covered by the 10 subpoena or order is subject to this Protective Order. Such notification shall include 11 a copy of this Stipulated Protective Order; and 12 (c) cooperate with respect to all reasonable procedures sought to be 13 pursued by the Designating Party whose Protected Material may be affected. If the 14 Designating Party timely seeks a protective order, the Party served with the 15 subpoena or court order shall not produce any information designated in this action 16 as “CONFIDENTIAL” before a determination by the court from which the 17 subpoena or order issued, unless the Party has obtained the Designating Party’s 18 permission. The Designating Party shall bear the burden and expense of seeking 19 protection in that court of its confidential material and nothing in these provisions 20 should be construed as authorizing or encouraging a Receiving Party in this Action 21 to disobey a lawful directive from another court. 22 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 23 PRODUCED IN THIS LITIGATION 24 (a) The terms of this Order are applicable to information produced by a 25 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 26 produced by Non-Parties in connection with this litigation is protected by the 27 remedies and relief provided by this Order. Nothing in these provisions should be 1 (b) In the event that a Party is required, by a valid discovery request, to 2 produce a Non-Party’s confidential information in its possession, and the Party is 3 subject to an agreement with the Non-Party not to produce the Non-Party’s 4 confidential information, then the Party shall: 5 (1) promptly notify in writing the Requesting Party and the Non- 6 Party that some or all of the information requested is subject to a confidentiality 7 agreement with a Non-Party; 8 (2) promptly provide the Non-Party with a copy of the Stipulated 9 Protective Order in this Action, the relevant discovery request(s), and a reasonably 10 specific description of the information requested; and 11 (3) make the information requested available for inspection by the 12 Non-Party, if requested. 13 (c) If the Non-Party fails to seek a protective order from this court within 14 14 days of receiving the notice and accompanying information, the Receiving Party 15 may produce the Non-Party’s confidential information responsive to the discovery 16 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 17 not produce any information in its possession or control that is subject to the 18 confidentiality agreement with the Non-Party before a determination by the court. 19 Absent a court order to the contrary, the Non-Party shall bear the burden and 20 expense of seeking protection in this court of its Protected Material. 21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED 22 MATERIAL 23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 24 Protected Material to any person or in any circumstance not authorized under this 25 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 26 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 27 to retrieve all unauthorized copies of the Protected Material, (c) inform the person 1 Order, and (d) request such person or persons to execute the “Acknowledgment and 2 Agreement to Be Bound” that is attached hereto as Exhibit A. 3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR 4 OTHERWISE PROTECTED MATERIAL 5 When a Producing Party gives notice to Receiving Parties that certain 6 inadvertently produced material is subject to a claim of privilege or other 7 protection, the obligations of the Receiving Parties are those set forth in Federal 8 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 9 whatever procedure may be established in an e-discovery order that provides for 10 production without prior privilege review. Pursuant to Federal Rule of Evidence 11 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 12 of a communication or information covered by the attorney-client privilege or work 13 product protection, the parties may incorporate their agreement in the stipulated 14 protective order submitted to the court. 15 12. MISCELLANEOUS 16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 17 person to seek its modification by the Court in the future. 18 12.2 Right to Assert Other Objections. By stipulating to the entry of this 19 Protective Order no Party waives any right it otherwise would have to object to 20 disclosing or producing any information or item on any ground not addressed in this 21 Stipulated Protective Order. Similarly, no Party waives any right to object on any 22 ground to use in evidence of any of the material covered by this Protective Order. 23 12.3 Filing Protected Material. A Party that seeks to file under seal any 24 Protected Material must comply with Civil Local Rule 79-5. Protected 25 Material may only be filed under seal pursuant to a court order authorizing the 26 sealing of the specific Protected Material at issue. If a Party's request to file 27 Protected Material under seal is denied by the court, then the Receiving Party may 1 file the information in the public record unless otherwise instructed by the court. 2 13. FINAL DISPOSITION 3 After the final disposition of this Action, as defined in paragraph 4, within 60 4 days of a written request by the Designating Party, each Receiving Party must 5 return all Protected Material to the Producing Party or destroy such material. As 6 used in this subdivision, “all Protected Material” includes all copies, abstracts, 7 compilations, summaries, and any other format reproducing or capturing any of the 8 Protected Material. Whether the Protected Material is returned or destroyed, the 9 Receiving Party must submit a written certification to the Producing Party (and, if 10 not the same person or entity, to the Designating Party) by the 60 day deadline that 11 (1) identifies (by category, where appropriate) all the Protected Material that was 12 returned or destroyed and (2) affirms that the Receiving Party has not retained any 13 copies, abstracts, compilations, summaries or any other format reproducing or 14 capturing any of the Protected Material. Notwithstanding this provision, Counsel 15 are entitled to retain an archival copy of all pleadings, motion papers, trial, 16 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 17 and trial exhibits, expert reports, attorney work product, and consultant and expert 18 work product, even if such materials contain Protected Material. Any such archival 19 copies that contain or constitute Protected Material remain subject to this Protective 20 Order as set forth in Section 4 (DURATION). 21 14. Any violation of this Order may be punished by any and all appropriate 22 measures including, without limitation, contempt proceedings and/or monetary 23 sanctions. 24 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 25 26 27 1 Dated: December 10, 2020 2 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 3 By 4 s/Robert J. Guite ROBERT J. GUITE 5 SASCHA HENRY ABBY H. MEYER 6 Attorneys for Starbucks Corporation 7 8 Dated: December 10, 2020 9 CARLSON LYNCH, LLP 10 By s/Scott G. Braden 11 TODD D. CARPENTER 12 JAE K. KIM SCOTT G. BRADEN 13 Attorneys for Plaintiff Teresa Adams 14 Dated: December 10, 2020 15 BLOOD HURST & O'REARDON, LLP 16 By s/Thomas S. O’Reardon 17 TIMOTHY G. BLOOD 18 THOMAS J. O’REARDON, II PAULA R. BROWN 19 Attorneys for Plaintiff Teresa Adams 20 21 22 23 24 25 26 27 1 ATTESTATION 2 Pursuant to L.R. 5-4.3.4, I hereby attest that all signatories listed above, and on whose behalf this filing is submitted, concur in its content and have authorized 4 the filing. 5 Executed this 10th day of December 2020 at San Francisco, California. 7 s/Robert J. Guite 3 ROBERT J. GUITE 10 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 11 17 || PATED: December 11, 2020 Trou. Sestl) am. S Honorable Karen E. Scott 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 ___________________________________ [print or type full address], declare 5 under penalty of perjury that I have read in its entirety and understand the 6 Stipulated Protective Order that was issued by the United States District Court for 7 the Central District of California on ______________, 20__ in the case of Teresa 8 Adams, individually and on behalf of all others similarly situated v. Starbucks 9 Corporation, etc.; et al., Case No. 8:20-cv-00225-MCS-KES. I agree to comply 10 with and to be bound by all the terms of this Stipulated Protective Order and I 11 understand and acknowledge that failure to so comply could expose me to sanctions 12 and punishment in the nature of contempt. I solemnly promise that I will not 13 disclose in any manner any information or item that is subject to this Stipulated 14 Protective Order to any person or entity except in strict compliance with the 15 provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court 17 for the Central District of California for the purpose of enforcing the terms of this 18 Stipulated Protective Order, even if such enforcement proceedings occur after 19 termination of this action. I hereby appoint __________________________ [print 20 or type full name] of _______________________________________ [print or type 21 full address and telephone number] as my California agent for service of process in 22 connection with this action or any proceedings related to enforcement of this 23 Stipulated Protective Order. 24 Date: ______________________________________ 25 City and State where sworn and signed: ______________________________ 26 Printed name: _______________________________ 27 Signature: __________________________________