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GUTRIDE SAFIER LLP

ADAM J. GUTRIDE (State Bar No. 181446)

SETH A. SAFIER (State Bar No. 197427)

MARIE A. MCCRARY (State Bar No. 262670)

MATTHEW T. MCCRARY (pro hac vice pending)

100 Pine Street, Suite 1250

San Francisco, CA 94111

Telephone: (415) 271-6469

Facsimile: (415) 449-6469

Attorneys for Plaintiff

PATTERSON BELKNAP WEBB & TYLER LLP

Steven A. Zalesin (pro hac vice)

Michelle W. Cohen (pro hac vice)

1133 Avenue of the Americas

New York, NY 10036-6710

Telephone: (212) 336-2000

Facsimile: (212) 336-2222

SHOOK HARDY & BACON LLP

Tammy B. Webb

One Montgomery Tower, Suite 2700

San Francisco, CA 94104

Telephone: 415-544-1904

Facsimile: 415-391-0281

tbwebb@shb.com

Attorneys For Defendant

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JACKIE FITZHENRY-RUSSELL, on behalf

of herself and all others similarly situated;

Plaintiffs,

vs.

The Coca-Cola Company;

Defendants.

Case No. 5:17-CV-00603-EJD

[PROPOSED] STIPULATED

PROTECTIVE ORDER

Judge: Hon. Edward J. Davila

MODIFIED BY THE COURT Magistrate Judge Howard R. Lloyd E-filed 9/6/2017
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1. PURPOSES AND LIMITATIONS

A. Disclosure and discovery activity in this action are likely to involve

production of confidential, proprietary, or private information for which special

protection from public disclosure and from use for any purpose other than prosecuting

this litigation may be warranted. Accordingly, the parties hereby stipulate to and request

that the Court enter the following Stipulated Protective Order (“Order”). The parties

acknowledge that this Order does not confer blanket protections on all disclosures or

responses to discovery and that the protection it affords from public disclosure and use

extends only to the limited information or items that are entitled to confidential treatment

under the applicable legal principles. The parties further acknowledge, as set forth in

Paragraph 12.3, below, that this Order does not entitle them to file confidential

information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

followed and the standards that will be applied when a party seeks permission from the

Court to file material under seal.

B. GOOD CAUSE STATEMENT

This action may involve trade secrets, customer and pricing lists and other

valuable research, development, commercial, financial, technical and/or proprietary

information for which special protection from public disclosure and from use for any

purpose other than prosecution of this action is warranted. Such confidential and

proprietary materials and information consist of, among other things, confidential

business or financial information, information regarding confidential business practices,

or other confidential research, development, or commercial information (including

information implicating privacy rights of third parties), information otherwise generally

unavailable to the public, or which may be privileged or otherwise protected from

disclosure under state or federal statutes, court rules, case decisions, or common law.

Accordingly, to expedite the flow of information, to facilitate the prompt resolution of

disputes over confidentiality of discovery materials, to adequately protect information

the parties are entitled to keep confidential, to ensure that the parties are permitted

reasonable necessary uses of such material in preparation for and in the conduct of trial,
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to address their handling at the end of the litigation, and serve the ends of justice, a

protective order for such information is justified in this matter. It is the intent of the

parties that information will not be designated as confidential for tactical reasons and

that nothing be so designated without a good faith belief that it has been maintained in a

confidential, non-public manner, and there is good cause why it should not be part of

the public record of this case. Further, by entering into this Stipulated Protective Order,

neither party concedes the relevance, discoverability, or admissibility of any category of

information.

2. DEFINITIONS

2.1 Action: This pending federal lawsuit, Jackie Fitzhenry-Russell, et al. v.

The Coca-Cola Company, United States District Court for the Northern District of

California, No. 5:17-CV-00603-EJD.

2.2 Challenging Party: a Party or Non-Party that challenges the designation

of information or items under this Order.

2.2 CONFIDENTIAL Information or Items: information (regardless of how

it is generated, stored or maintained) or tangible things that qualify for protection under

Federal Rule of Civil Procedure 26(c).

2.3 Counsel (without qualifier): Outside Counsel and In-House Counsel (as

well as their support staff).

2.4 Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

2.5 Disclosure or Discovery Material: all items or information, regardless of

the medium or manner in which it is generated, stored, or maintained (including, among

other things, testimony, transcripts, and tangible things), that are produced or generated

in disclosures or responses to discovery in this matter.

2.6 Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as

a testifying or non-testifying expert or consultant in this action, (2) is not a past or
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current employee of a Party or of a Party’s competitor, and (3) at the time of retention,

is not anticipated to become an employee of a Party or of a Party’s competitor.

2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items: extremely sensitive “Confidential Information or Items,”

disclosure of which to another Party or Non-Party would create a substantial risk of

serious harm that could not be avoided by less restrictive means.

2.8 In-House Counsel: attorneys who are employees of a Party to this Action.

In-House Counsel does not include Outside Counsel or any other outside counsel.

2.9 Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this Action.

2.10 Outside Counsel: attorneys who are not employees of a party to this

Action but are retained to represent or advise a party to this Action and have appeared

in this Action on behalf of that party or are affiliated with a law firm which has

appeared on behalf of that party.

2.11 Party: any party to this Action, including all of its officers, directors,

employees, Experts, and Outside Counsel of Record (and their support staffs).

2.12 Producing Party: a Party or non-Party that produces Disclosure or

Discovery Material in this Action (including all of its officers, directors, employees,

consultants, retained experts, discovery vendors, and Outside Counsel (and their support

staff, employees, and agents).

2.13 Professional Vendors: persons or entities that provide litigation support

services (e.g., photocopying, videotaping, translating, preparing exhibits or

demonstrations, and organizing, storing, or retrieving data in any form or medium) to a

Party and their employees and subcontractors.

2.14 Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’

EYES ONLY.”

2.15 Receiving Party: a Party that received Disclosure or Discovery Material

from a Producing Party.
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3. SCOPE

The protections conferred by this Stipulation and Order cover not only Protected

Material (as defined above), but also: (1) any information copied or extracted from

Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

Material; and (3) any testimony, conversations, or presentations by Parties or their

Counsel that might reveal Protected Material. However, the protections conferred by

this Stipulation and Order do not cover the following information: (a) any information

that is in the public domain at the time of disclosure to a Receiving Party or becomes

part of the public domain after its disclosure to a Receiving Party as a result of

publication not involving a violation of this Order, including becoming part of the

public record through trial or otherwise; and (b) any information known to the

Receiving Party prior to the disclosure or obtained by the Receiving Party after the

disclosure from a source who obtained the information lawfully and under no obligation

of confidentiality to the Designating Party. Any use of Protected Material at trial shall

be governed by a separate agreement or order.

4. DURATION

Even after final disposition of this litigation, the confidentiality obligations

imposed by this Order shall remain in effect until a Designating Party agrees otherwise

in writing or a court order otherwise directs. Final disposition shall be deemed to be the

later of (1) dismissal of all claims and defenses in this Action, with or without

prejudice; and (2) final judgment herein after the completion and exhaustion of all

appeals, rehearings, remands, trials, or reviews of this Action, including the time limits

for filing any motions or applications for extension of time pursuant to applicable law.

5. DESIGNATING PROTECTED MATERIAL

5.1 Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under this

Order must take care to limit any such designation to specific material that qualifies

under the appropriate standards. The Designating Party must, in good faith and to the

extent it is practical to do so, designate for protection only those parts of material,

For a period of six months after final disposition of 

this litigation, this court will retain jurisdiction to 

enforce this 

order.
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documents, items, or oral or written communications that qualify – so that other

portions of the material, documents, items, or communications for which protection is

not warranted are not swept unjustifiably within the ambit of this Order. Mass,

indiscriminate, or routinized designations are prohibited. Designations that have been

made for an improper purpose (e.g., to unnecessarily encumber or retard the case

development process or to impose unnecessary expenses and burdens on other parties)

expose the Designating Party to sanctions.

If it comes to a Designating Party’s attention that information or items that it

designated for protection do not qualify for protection that Designating Party must

promptly notify all other Parties that it is withdrawing the inapplicable designation.

5.2 Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., Paragraph 5.2(b) below), or as otherwise stipulated or ordered,

Disclosure or Discovery Material that qualifies for protection under this Order must be

clearly so designated before the material is disclosed or produced.

Designation in conformity with this Order requires:

(a) For information in documentary form (e.g., paper or electronic

documents, but excluding transcripts of depositions or other pretrial or trial

proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that

contains protected material.

A Party or Non-Party that makes original documents or materials available for

inspection need not designate them for protection until after the inspecting Party has

indicated which material it would like copied and produced. During the inspection and

before the designation, all of the material made available for inspection shall be deemed

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting

Party has identified the documents it wants copied and produced, the Producing Party

must determine which documents, or portions thereof, qualify for protection under this

Order. Then, before producing the specified documents, the Producing Party must affix

the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. If only a

portion or portions of the material on a page qualifies for protection, the Producing

Party also must clearly identify the protected portion(s) (e.g., by making appropriate

markings in the margins) and must specify, for each portion, the level of protection

being asserted.

(b) for testimony given in deposition or in other pretrial or trial

proceedings, that the Designating Party identify on the record, before the close of the

deposition, hearing, or other proceeding, all protected testimony and specify the level of

protection being asserted. When it is impractical to identify separately each portion of

testimony that is entitled to protection and it appears that substantial portions of the

testimony may qualify for protection, the Designating Party may invoke on the record

(before the deposition, hearing, or other proceeding is concluded) a right to have up to

thirty (30) days after receipt of the certified transcript of such testimony to identify the

specific portions of the testimony as to which protection is sought and to specify the

level of protection being asserted. Until the expiration of the thirty (30) days, the entire

transcript shall be treated as if it had been designated “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” unless otherwise agreed. After the expiration of that

period, only those portions of the testimony that are appropriately designated for

protection within the 30 days shall be covered by the provisions of this Stipulated

Protective Order.

Transcripts containing Protected Material shall have an obvious legend on the

title page that the transcript contains Protected Material, and the title page shall be

followed by a list of all pages (including line numbers as appropriate) that have been

designated as Protected Material and the level of protection being asserted by the

Designating Party. The Designating Party shall inform the court reporter of these

requirements.

(c) for information produced in some form other than documentary and

for any other tangible items, that the Producing Party affix in a prominent place on the

exterior of the container or containers in which the information or item is stored the
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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY.” If only a portion or portions of the information or item warrant protection, the

Producing Party, to the extent practicable, shall identify the protected portion(s) and

specify the level of protection being asserted.

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive the

Designating Party’s right to secure protection under this Order for such material. Upon

timely correction of a designation, the Receiving Party must make reasonable efforts to

assure that the material is treated in accordance with the provisions of this Order.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1 Timing of Challenges. Any Party or Non-Party may challenge a

designation of confidentiality at any time. Unless a prompt challenge to a Designating

Party’s confidentiality designation is necessary to avoid foreseeable, substantial

unfairness, unnecessary economic burdens, or a significant disruption or delay of the

litigation, a Party does not waive its right to challenge a confidentiality designation by

electing not to mount a challenge promptly after the original designation is disclosed.

6.2 Meet and Confer. The Challenging Party shall initiate the dispute

resolution process by providing written notice of the designation(s) it is challenging and

describing the basis for its challenge(s). To avoid ambiguity as to whether a challenge has

been made, the written notice must recite that the challenge to confidentiality is being

made in accordance with this specific paragraph of the Protective Order. The parties shall

attempt to resolve each challenge in good faith and must begin the process by conferring

directly (in voice to voice dialogue; other forms of communication are not sufficient)

within 14 days of the date of service of notice. In conferring, the Challenging Party must

explain the basis for its belief that the confidentiality designation was not proper and must

give the Designating Party an opportunity to review the designated material, to reconsider

the circumstances, and, if no change in designation is offered, to explain the basis for the

chosen designation. A Challenging Party may proceed to the next stage of the challenge

process only if it has engaged in this meet and confer process first or establishes that the

seek judicial intervention
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Designating Party is unwilling to participate in the meet and confer process in a timely

manner or the matter remains unresolved for over fourteen (14) days after a meet and

confer.

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court

intervention, the Designating Party shall file and serve a motion to retain confidentiality

under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable)

within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that

the meet and confer process will not resolve their dispute, whichever is earlier. Each such

motion must be accompanied by a competent declaration affirming that the movant has

complied with the meet and confer requirements imposed in the preceding paragraph.

Failure by the Designating Party to make such a motion including the required declaration

within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality

designation for each challenged designation. In addition, the Challenging Party may file a

motion challenging a confidentiality designation at any time if there is good cause for doing

so, including a challenge to the designation of a deposition transcript or any portions thereof.

Any motion brought pursuant to this provision must be accompanied by a competent

declaration affirming that the movant has complied with the meet and confer requirements

imposed by the preceding paragraph.

The burden of persuasion in any such challenge proceeding shall be on the

Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to

harass or impose unnecessary expenses and burdens on other parties) may expose the

Challenging Party to sanctions. Unless the Designating Party has waived the

confidentiality designation by failing to file a motion to retain confidentiality as described

above, all parties shall continue to afford the material in question the level of protection to

which it is entitled under the Producing Party’s designation until the court rules on the

challenge.

7. ACCESS TO AND USE OF PROTECTED MATERIAL

parties shall comply with the undersigned's standing order re: civil discovery disputes. Any Discovery Dispute Joint Report shall affirm compliance with both the terms of paragraph 6.2 in this seek relief

protective order and subsequent compliance with the separate meet-and-confer requirements in the standing order

re: civil discovery disputes. Discovery Dispute Joint Report.

The Challenging Party may serve notice of a challenge, including a challenge to some or all of a 

deposition transcript, at any time for good cause. Any Discovery Dispute Joint Report related

both paragraph 6.2 of this protective order and the separate standing 

order requirements.
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7.1 Basic Principles. A Receiving Party may use Protected Material that is

disclosed or produced by another Party or by a Non-Party in connection with this case

only for prosecuting, defending, or attempting to settle this litigation. Such Protected

Material may be disclosed only to the categories of persons and under the conditions

described in this Order. When the litigation has been terminated, a Receiving Party

must comply with the provisions of paragraph 13 below (FINAL DISPOSITION).

Protected Material must be stored and maintained by a Receiving Party at a

location and in a secure manner that ensures that access is limited to the persons

authorized under this Order.

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the Court or permitted in writing by the Designating Party, a

Receiving Party may disclose any information or item designated “CONFIDENTIAL”

only to the following individuals under the following conditions:

(a) the Receiving Party’s Outside Counsel in this Action, as well as

employees of said Outside Counsel to whom it is reasonably necessary to disclose the

information for this litigation;

(b) The Parties and the directors, officers, and employees (including InHouse Counsel) to whom disclosure is reasonably necessary for this litigation and who

have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

(c) Experts of the Receiving Party to whom disclosure is reasonably

necessary for this litigation and who have signed the “Acknowledgment and Agreement

to Be Bound” (Exhibit A);

(d) the Court and its personnel;

(e) court reporters and their staff, professional jury or trial consultants,

mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for

this Action and who have signed the “Acknowledgment and Agreement to Be Bound”

(Exhibit A);

(f) during their depositions, witnesses in the action to whom disclosure is

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
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Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the

court. Parties shall give the other parties notice if they reasonably expect a deposition,

hearing or other proceeding to include Protected Material so that the other parties can

ensure that only authorized individuals who have signed the “Acknowledgment and

Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a

document as an exhibit at a deposition shall not in any way affect its designation as

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”;

and

(g) the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information; and

(h) such other persons as the parties may agree or may be ordered by the

Court.

7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” Information or Items. Unless otherwise ordered by the court or permitted in

writing by the Designating Party, a Receiving Party may disclose any information or item

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

(a) the Receiving Party’s Outside Counsel of Record in this action, as well

as employees of said Outside Counsel of Record to whom it is reasonably necessary to

disclose the information for this litigation and who have signed the “Acknowledgment and

Agreement to Be Bound” that is attached hereto as Exhibit A;

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably

necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to

Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph

7.4(a)(1)-(2), below, have been followed;

(c) the court and its personnel;

(d) court reporters and their staff, professional jury or trial consultants, and

Professional Vendors to whom disclosure is reasonably necessary for this litigation and

who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
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(e) the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information; and

(f) such other persons as the parties may agree or may be ordered by the

Court.

7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.

(a)(1) The parties recognize that certain trade secrets or other highly

confidential information that may be reflected in materials that are subject to disclosure in

the course of litigation should be absolutely protected from competitors. “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information or items may be

disclosed to an Expert without disclosure of the identity of the Expert as long as the

Expert is not a current officer, director, employee, or consultant of a competitor of a Party,

is not anticipated to become one, and has not been an officer, director, employee, or

consultant of a competitor within the last five (5) years. Under no circumstances shall any

information or item that has been designated “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” be disclosed to an individual who is a current employee,

officer, director, or consultant of a competitor of a Party. As used in Section 7.4,

“Consultant” shall mean an individual who personally provided a service to a competitor

of a Party for which the competitor provided compensation, or personally assisted

someone in the provision of such services. “Services” as defined in this section shall mean

that the work was performed in connection with a soft drink product, defined to mean a

non-alcoholic carbonated beverage containing flavorings, sweeteners and other

ingredients. In Section 7.4, “Consultant” shall not include employees of an entity that

provided a service to a competitor of a Party, provided such employees did not personally

provide services to the competitor or assist those who did.

(a)(2) Unless otherwise ordered by the court or agreed to in writing by the

Designating Party, a Party that seeks to disclose to an individual who otherwise meets the

definition of “Expert” set forth in Paragraph 2.6, but who has been an officer, director,

employee, or consultant for a competitor within the last five (5) years, or is, at the time of
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their retention, anticipated to become one, any information or item that has been

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to

paragraph 7.3(b) first must make a written request to the Designating Party that (1)

identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” information that the Receiving Party seeks permission to disclose to the Expert,

(2) sets forth the full name of the Expert and the city and state of his or her primary

residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s

current employer(s), (5) identifies each person or entity from whom the Expert has

received compensation or funding for work in his or her areas of expertise or to whom the

expert has provided professional services, including in connection with a litigation, at any

time during the preceding five years, and (6) identifies (by name and number of the case,

filing date, and location of court) any litigation in connection with which the Expert has

offered expert testimony, including through a declaration, report, or testimony at a

deposition or trial, during the preceding five years.

(b) A Party that makes a request and provides the information specified in

the preceding respective paragraphs may disclose the subject Protected Material to the

identified Expert unless, within 14 days of delivering the request, the Party receives a

written objection from the Designating Party. Any such objection must set forth in detail

the grounds on which it is based.

(c) A Party that receives a timely written objection must meet and confer

with the Designating Party (through direct voice to voice dialogue) to try to resolve the

matter by agreement within seven days of the written objection. If no agreement is

reached, the Party seeking to make the disclosure to the Expert may file a motion as

provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if

applicable) seeking permission from the court to do so. Any such motion must describe

the circumstances with specificity, set forth in detail the reasons why the disclosure to the

Expert is reasonably necessary, assess the risk of harm that the disclosure would entail,

and suggest any additional means that could be used to reduce that risk. In addition, any

such motion must be accompanied by a competent declaration describing the parties’
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efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and

confer discussions) and setting forth the reasons advanced by the Designating Party for its

refusal to approve the disclosure.

In any such proceeding, the Party opposing disclosure to the Expert shall bear the

burden of proving that the risk of harm that the disclosure would entail (under the

safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected

Material to its Expert.

7.5 Discussion and Consultation with Clients

In the event that a Receiving Party’s counsel believes in good faith that it is

reasonable to consult with its client, who would not otherwise be permitted access, about

information designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”

where such information either (1) relates to the identity or quantity of ginger and/or ginger

flavoring ingredients used in Seagram’s Ginger Ale or variants thereof; (2) consists of data

reflecting the retail prices at which Seagram’s Ginger Ale was sold during the putative

class period; or (3) consists of financial data reflecting the revenue for sales of Seagram’s

Ginger Ale sold during the putative class period, the Receiving Party’s counsel shall be

permitted to do so provided that (a) the document or information itself or any other portion

thereof is not given or disclosed to such client; (b) such client has signed an

Acknowledgment and Agreement to Be Bound (Exhibit A). In addition, a Receiving

Party’s counsel may disclose to its client all pleadings, briefs, and/or other documents

filed with the Court, including drafts of such filings that quote or refer to information or

items designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” to the

extent that such information either (1) relates to the identity or quantity of ginger and/or

ginger flavoring ingredients used in Seagram’s Ginger Ale or variants thereof; (2) consists

of data reflecting the retail prices at which Seagram’s Ginger Ale was sold during the

putative class period, or (3) consists of financial data reflecting the revenue for sales of

Seagram’s Ginger Ale sold during the putative class period, provided that the client has

signed an Acknowledgment and Agreement to Be Bound (Exhibit A). Notwithstanding

the foregoing, Receiving Party’s counsel will under no circumstances disclose information
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to its client designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

other than the information specifically identified in this Section 7.5.

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

IN OTHER LITIGATION

If a Receiving Party is served with a subpoena or a court order issued in

other litigation that would compel disclosure of any information or items designated in

this Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

EYES ONLY,” the Receiving Party must:

(a) promptly notify in writing the Designating Party (by fax and email, if

possible). Such notification must include a copy of the subpoena or court order;

(b) promptly notify in writing the party who caused the subpoena or

order to issue in the other litigation that some or all of the material covered by the

subpoena or order is subject to this Order. Such notification shall include a copy of this

Order; and

(c) cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

If the Designating Party timely seeks a protective order, the Receiving Party

served with the subpoena or court order shall not produce any information designated in

this Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

EYES ONLY” before a determination by the court from which the subpoena or order

issued, unless the Party has obtained the Designating Party’s permission. The

Designating Party shall bear the burden and expense of seeking production in that court

of its confidential material – and nothing in these provisions should be construed as

authorizing or encouraging a Receiving Party in this Action to disobey a lawful

directive from another court.
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9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION

(a) The terms of this Order are applicable to information produced by a NonParty in this Action and designated as “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by

Non-Parties in connection with this litigation is protected by the remedies and relief

provided by this Order. Nothing in these provisions should be construed as prohibiting

a Non-Party from seeking additional protections.

(b) In the event that a Party is required, by a valid discovery request, to

produce a Non-Party’s confidential information in its possession, and the Party is

subject to an agreement with the Non-Party not to produce the Non-Party's confidential

information, then the Party shall:

(1) promptly notify in writing the Requesting Party and the Non-Party

that some or all of the information requested is subject to a confidentiality agreement

with a Non-Party;

(2) promptly provide the Non-Party with a copy of the Order in this

litigation, the relevant discovery request(s), and a reasonably specific description of

the information requested; and

(3) make the information requested available for inspection by the NonParty.

(c) If the Non-Party fails to object or seek a protective order from this court

within 14 days of receiving the notice and accompanying information, the Receiving

Party may produce the Non-Party’s confidential information responsive to the discovery

request. If the Non-Party timely seeks a protective order, the Receiving Party shall not

produce any information in its possession or control that is subject to the confidentiality

agreement with the Non-Party before a determination by the court. Absent a court order

to the contrary, the Non-Party shall bear the burden and expense of seeking protection in

this court of its Protected Material.

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this

Order, the Receiving Party must immediately (a) notify in writing the Designating

Party of the unauthorized disclosures, (b) use its best efforts to retrieve all

unauthorized copies of the Protected Material, (c) inform the person or persons to

whom unauthorized disclosures were made of all the terms of this Order, and (d)

request such person or persons to execute the “Acknowledgement and Agreement to

Be Bound” that is attached hereto as Exhibit A. Unauthorized disclosure of

Protected Material may expose the Receiving Party to sanctions.

11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL

(a) When a Producing Party gives notice to Receiving Parties that certain

inadvertently produced material is subject to a claim of privilege or other protection,

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

may be established in an e-discovery order that provides for production without prior

privilege review.

(b) Pursuant to Rule 502(d) and (e) of the Federal Rules of Evidence, if a

Producing Party discloses material that the Producing Party thereafter claims to be

privileged or protected by the attorney-client privilege or work product protection

(“Claw-Back Material”), the disclosure of such material will not constitute or be

deemed a waiver or forfeiture—in this or any other action—of any claim of privilege

or work product protection that the Producing Party would otherwise be entitled to

assert with respect to the material and its subject matter.

(c) A Producing Party must promptly notify the party receiving the material,

in writing, that it has disclosed Claw-Back Material without intending a waiver by

the disclosure. Upon such notification, the Receiving Party must—unless it contests

the claim of attorney-client privilege or work product protection in accordance with
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paragraph 11(d) below—promptly: (i) notify the Producing Party that it will make

best efforts to identify and return, sequester or destroy (or in the case of

electronically stored information, delete) the Claw-Back Material and any

reasonably accessible copies it has and (ii) provide a certification that it will cease

further review, dissemination, and use of the Claw-Back Material. Within five (5)

business days of receipt of the notification from the Receiving Party, the Producing

Party must explain as specifically as possible why the Protected Information is

privileged.

(d) If the Receiving Party contests the claim of attorney-client privilege or

work product protection, the Receiving Party may keep the Claw-Back Material in

its possession only for purposes of submitting the same to the Court within 14

business days with an accompanying motion (“Disclosure Motion”) against the

proposed Claw-Back Material by the Producing Party, and for no other purpose.

Prior to the Court ruling upon such Disclosure Motion, Receiving Party shall take

necessary steps to quarantine the subject document(s) from further review, shall not

permit it to be disclosed to any individuals other than those involved in preparing the

Disclosure Motion, shall take reasonable steps to ensure that all individuals not

involved in preparing the Disclosure Motion have destroyed it, and shall submit with

its Disclosure Motion a statement that reasonably necessary steps to quarantine the

Claw-Back Material has been taken. The Disclosure Motion must be filed under

seal. Pending resolution of the Disclosure Motion, the Receiving Party must not use

the challenged information in any way or disclose it to any person other than those

required by law to be served with a copy of the sealed Disclosure Motion.

(e) The parties may stipulate to extend the time periods set forth in

paragraphs 11(c)-(d).

(f) The Producing Party retains the burden—upon challenge pursuant to

paragraph 11(d)—of establishing the privileged or protected nature of the ClawBack Material.
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(g) Nothing in this Order limits the right of any party to petition the Court for

an in camera review of the Protected Information.

(h) This Order does not preclude a party from voluntarily waiving the

attorney-client privilege or work product protection. The provisions of Federal Rule

502(a) apply when the Disclosing Party uses or indicates that it may use information

produced under this Order to support a claim or defense.

12. MISCELLANEOUS

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.

12.2 Right to Assert Other Objections. By stipulating to the entry of this

Protective Order no Party waives any right it otherwise would have to object to

disclosing or producing any information or item on any ground not addressed in this

Stipulated Protective Order. Similarly, no Party waives any right to object on any

ground to use in evidence of any of the material covered by this Protective Order.

12.3 Filing Protected Material. Without written permission from the

Designating Party or a court order secured after appropriate notice to all interested

persons, a Party may not file in the public record in this action any Protected

Material. A Party that seeks to file under seal any Protected Material must comply

with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant

to a court order authorizing the sealing of the specific Protected Material at issue.

Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request

establishing that the Protected Material at issue is privileged, protectable as a trade

secret, or otherwise entitled to protection under the law. If a Receiving Party's

request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is

denied by the court, then the Receiving Party may file the information in the public

record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.

13. FINAL DISPOSITION

Within 60 days after the final disposition of this action, as defined in

paragraph 4, each Receiving Party must return all Protected Material to the
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Producing Party or destroy such material. As used in this subdivision, “all Protected

Material” includes all copies, abstracts, compilations, summaries, and any other

format reproducing or capturing any of the Protected Material. Whether the

Protected Material is returned or destroyed, the Receiving Party must submit a

written certification to the Producing Party (and, if not the same person or entity, to

the Designating Party) by the 60 day deadline that (1) identifies (by category, where

appropriate) all the Protected Material that was returned or destroyed and (2) affirms

that the Receiving Party has not retained any copies, abstracts, compilations,

summaries or any other format reproducing or capturing any of the Protected

Material. Notwithstanding this provision, Counsel are entitled to retain an archival

copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

work product, and consultant and expert work product, even if such materials

contain Protected Material. Any such archival copies that contain or constitute

Protected Material remain subject to this Protective Order as set forth in Section 4

(DURATION).

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

DATED: August 30, 2017 /s/Marie McCrary /

Adam J. Gutride

Seth A. Safier

Marie A. McCrary

Matthew T. McCrary

GUTRIDE SAFIER LLP

Attorneys for Plaintiff Jackie FitzhenryRussell

DATED: August 30, 2017 /s/ Steven A. Zalesin /

Steven A. Zalesin

Michelle W. Cohen

Patterson Belknap Webb & Tyler LLP

Tammy B. Webb

Shook Hardy & Bacon LLP

Attorneys for The Coca-Cola Company

14. All discovery and disclosure disputes are subject to the undersigned's standing order re: discovery disputes.
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PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: _______________

Hon. Edward J. Davila

Magistrate Judge Howard R. Lloyd AS MODIFIED BY THE COURT, IT IS SO ORDERED. 9/6/2017
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EXHIBIT A

ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

I, ___________________________[print or type full name], of

___________________________________[print or type full address], declare under

penalty of perjury that I have read in its entirety and understand the Stipulated

Protective Order that was issued by the United States District Court for the Northern

District of California on ___________________, in the case of Jackie FitzhenryRussell v. The Coca-Cola Company, Case No. 5:17-CV- 00603-EJD. I agree to comply

with and to be bound by all the terms of this Stipulated Protective Order and I

understand and acknowledge that failure to so comply could expose me to sanctions and

punishment in the nature of contempt. I solemnly promise that I will not disclose in any

manner any information or item that is subject to this Stipulated Protective Order to any

person or entity except in strict compliance with the provisions of this Order.

I further agree to submit to the jurisdiction of the United States District

Court for the Northern District of California for the purpose of enforcing the terms of

this Stipulated Protective Order, even if such enforcement proceedings occur after

termination of this Action.

I hereby appoint _________________________ [print or type full name]

of ___________________________________[print or type full address and telephone

number] as my California agent for service of process in connection with this Action or

any proceedings related to enforcement of this Stipulated Protective Order.

/

/

/

/

/
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Date: ______________________

City and State where sworn and signed: ________________________

Printed Name: ____________________________________________

Signature: _______________________________________________