Fox v. Starbucks Corporation

Background

The plaintiffs are Rafael Fox, Paul D’Auria, and Jill Shwiner. The defendant is Starbucks Corporation, doing business as Starbucks Coffee Company. The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that might be disclosed during discovery.

The court stated that good cause existed for an appropriately tailored confidentiality order governing the pretrial phase of the action. The order does not decide the confidentiality of any particular discovery material, and it does not waive objections to discovery, waive privilege or other protection, or decide whether evidence will be admissible at trial.

Confidentiality Designations and Disclosure

A producing party may designate material as confidential only when it reasonably and in good faith believes the material includes specified types of information, such as previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal health information; or information later given confidential status by the court.

The order establishes procedures for marking confidential material and for designating deposition testimony and exhibits. It also permits a producing party to correct an earlier failure to designate material as confidential by giving written notice and providing replacement versions within two business days.

Confidential material may be disclosed only to listed categories of recipients, including the parties and certain insurers; counsel and their litigation staff; outside vendors; mediators or arbitrators; people identified as having received a document; certain witnesses; experts and other consultants; deposition transcription providers; and the court and appellate courts. Witnesses, experts, consultants, mediators, and arbitrators who receive confidential material must first sign a nondisclosure agreement in the form attached to the order.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. The order requires recipients to take precautions against unauthorized or accidental disclosure. It also permits disclosure in response to a lawful subpoena or other compulsory process, subject to notice requirements and the producing party’s opportunity to oppose the disclosure.

Privilege and Court Filings

If a party accidentally discloses information protected by attorney-client privilege or attorney work-product protection, the disclosure does not waive the protection under the order. The receiving party must return or destroy the information within five business days after receiving a claim of inadvertent disclosure and provide counsel’s certification. The producing party must then provide a privilege log within five business days after notification that the information was returned or destroyed. The receiving party may ask the court to compel production, and the producing party retains the burden of establishing privilege or protection.

The order reminds the parties to follow federal and Southern District of New York privacy rules concerning sensitive information. Certain categories may be redacted without court approval, while other redactions require court approval and must be narrowly tailored and consistent with the presumption favoring public access to judicial documents. Documents submitted under seal or with redactions must be sent to the court using the specified chambers email procedure; they may not be submitted exclusively in hard copy.

Objections, Return of Materials, and Enforcement

A party may object to a confidentiality designation before trial by giving written notice explaining the grounds. A party may also request additional disclosure limits, such as an attorneys’-eyes-only restriction, by written notice. If the parties cannot promptly resolve the issue, counsel must bring the dispute to the court under the court’s individual practices.

Within 60 days after final disposition of the action, including appeals, recipients must return confidential discovery material and copies to the producing party or destroy them if the producing party permits destruction. Attorneys specifically retained for the action may keep archival copies of specified litigation materials, but those copies remain subject to the order.

The order survives termination of the litigation. The court retains jurisdiction over persons subject to the order as needed to enforce its obligations or impose contempt sanctions. The court therefore entered a discovery-related protective order, not a ruling on the merits of the parties’ underlying claims.