Preview
1 Robert W. Thompson, Esq. (SBN: 250038)
THOMPSON LAW OFFICES, P.C.
2
700 Airport Boulevard, Suite 160
3 Burlingame, CA 94010
Telephone: (650) 513-6111
4 Facsimile: (650) 513-6071
5
3/18/2021
Brian D. Kent (Admitted Pro Hac Vice)
6 LAFFEY, BUCCI & KENT, LLP
1100 Ludlow Street, Suite 300
7 Philadelphia, PA 19107
8
Telephone: (215) 399-9255
Facsimile: (215) 241-8700
9
Attorneys for Plaintiff JANE DOES
10
11 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
12 COUNTY OF SAN MATEO
13 UNLIMITED CIVIL JURISDICTION
14
JANE DOE, ) Case No.: 18CIV03706
15
)
Plaintiff, [Assigned for all purposes to the Honorable
16 ) Marie S. Weiner, Department 2]
)
17 vs. PLAINTIFFS’ MOTION FOR AMENDED
)
18 MASSAGE ENVY FRANCHISING, LLC; et ) PROTECTIVE ORDER
al., ) 3/30/2021
19 ) Date: March 23, 2021
Defendants. ) Time: 2:00 p.m.
20 Dept.: 2
)
21 )
)
22 )
)
23
24
TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
25
Please take notice that on March 23, 2021, at 2:00 p.m. in the above referenced Court,
26 Plaintiffs will, pursuant to California Code of Civil Procedure § 2031.060, move to have this
27 Court enter an amended protective order governing the production of certain discovery in this
28 matter on the following grounds:
1
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 (1) Plaintiffs have demanded production of certain documents, materials, and information
2 from Defendants in discovery. Defendants have agreed to produce documents,
3 materials, and information it contends are responsive to the discovery requests.
4 However, Defendants claim that the documents, materials, and information it has
5
produced or wishes to produce are confidential and that such documents, materials, and
information cannot be shared or used in the various cases before this Court or similar
6
litigants suing the Defendants, many represented by the same counsel, for nearly
7
identical sexual assaults.
8
(2) Pursuant to California Code of Civil Procedure § 2031.060(a) and § 2016.040, the
9
parties have met and conferred extensively regarding the language to be contained
10
within a protective order, and discussed the protective order with this Court. The
11 parties are largely in agreement on most of the language that should be contained in the
12 protective order. Unfortunately, the parties have not been able to reach a final
13 agreement on all the language for the protective order.
14 (3) As such, pursuant to California Code of Civil Procedure § 2031.060(b), Plaintiffs seek
15
an order from the Court to enter a protective order governing the production discovery
in this case consistent with the proposed amended protective order attached as Exhibit
16
A to the Declaration of Robert W. Thompson. Plaintiffs’ requested amended protective
17
order appropriately balances Defendants’ request for confidentiality in a manner
18
consistent with California law, public policy of the state, and in a manner that does not
19
pose an undue burden on Plaintiffs.
20
Plaintiffs’ motion is based on the attached memorandum of points and authorities, the
21 declaration of Robert W. Thompson and attached exhibits, the declaration of Brian D. Kent, all
22 pleadings on file in this matter, and all evidence and argument presented by Plaintiffs at a hearing
23 on this matter.
24 Dated: February 26, 2021 THOMPSON LAW OFFICES, P.C.
25
By: _______________________
26
ROBERT THOMPSON
27 Attorneys for Plaintiffs
28
2
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 MEMORANDUM OF POINTS AND AUTHORITY
2 I. INTRODUCTION
3
Defendant Massage Envy Franchising, LLC (“MEF”) boasts a billion-dollar business that
4
falsely promises safety in the treatment room for massage and spa services at an affordable price
5 while intentionally concealing the known dangers of their services to women at their locations in
6 California and throughout the country. MEF and approximately 40 co-defendant franchise
7 owners’ policies and procedures ultimately allowed their massage therapists to sexually assault
8 Plaintiffs. MEF and its co-defendant franchise owners, falsely promised a safe massage free from
9
inappropriate touching of female genitalia and/or breasts, while intentionally concealing the fact
that it knowingly employed massage therapists that commit sexual assaults on unwitting
10
customers, such as the Plaintiffs in these cases. They also promised Plaintiffs that they had a
11
“zero tolerance” policy against allowing sexual assaults by their massage therapists. MEF and its
12
co-defendant franchise owners knew these promises were false and were known to be false when
13
they were made to Plaintiffs. They did this with actual knowledge that hundreds (if not thousands)
14
of women were sexually assaulted by their massage therapists, and that their policies and
15 procedures were ineffective to prevent these assaults. They knew if they disclosed the rampant
16 problem of sexual assaults occurring within their business or in the very least even warned of the
17 known danger within its company, then it would fail and these Plaintiffs would never have
18 purchased massage services.
19 Due to MEF and its co-defendant franchise owners’ conspiracy to conceal the dangers
associated with their business, Plaintiffs had no knowledge of the magnitude of sexual assaults
20
happening at Massage Envy before they purchased massage services. A former MEF employee
21
put it this way: “[The internal review policy] is not in place to protect the client. It’s in place to
22
protect the company. It’s centered around defusing the situation so the client doesn’t call the
23
police. You don’t want cop cars showing up at your location the next day.” According to a former
24
corporate executive, Defendants’ leadership has long feared the media, and therefore, the public
25 would realize the national scope of the problem. That person recalled executives discussing what
26 would happen “if someone connects the dots of how many sexual assaults have occurred across
27 the country.” Defendants train their employees that the goal when investigating sexual assault
28 claims is “to avoid police and keep membership.”
Defendant MEF and its counsel have utilized protective orders in cases throughout the
3
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 country as a sword to attempt to shield them from producing relevant information, documents and
2 deposition testimony from prior or concurrent cases, even discovery propounded and taken by
3 counsel in this case, from this litigation or current litigation in other states. See Declaration of
4 Brian D. Kent. In essence, despite Plaintiffs’ counsel knowing that relevant and discoverable
5
information from cases it has or is currently litigating exists, Plaintiffs cannot use same because of
the intricate web Defendants have set up in all of the cases in which they were sued as a result of a
6
massage therapist sexually assaulting a customer. This is not the purpose of a protective order.
7
Additionally, in this case, Plaintiffs have propounded a number of requests in discovery for
8
MEF and the franchise defendants to produce documents, materials, and information relevant to
9
Plaintiffs’ claims and Defendants’ defenses in this matter. MEF and the franchise defendants have
10
produced some documents, material, and information responsive to the requests. Many of these
11 documents, materials and information were deemed confidential and subject to a stipulated
12 protective order in place to protect the confidentiality of such documents. Multiple co-defendants
13 have responded by identifying documents produced by their co-conspirator, co-defendant
14 franchise owners as being responsive to document requests propounded by Plaintiffs while MEF is
15
taking the position that documents it produces in Jane #1’s case cannot be used in Jane Doe #2,
#4, or #5’s cases. MEF is also taking the position that a deposition from Jane Doe #1’s case
16
cannot be used Jane Doe #2, #4, or #5’s cases. Lastly, MEF is also taking the position that
17
Plaintiffs’ counsel cannot share documents and depositions with other similarly situated plaintiffs
18
who are also suing MEF as a result to being sexual assaulted, even Plaintiffs who are represented
19
by counsel in this case. This will essentially result in hundreds of cumulative depositions,
20
document productions, etc. and will allow MEF to continue to use the protective order as a sword
21 instead of a shield.
22 During meet and confer efforts and multiple Informal Discovery Conferences with this
23 Court, the parties attempted to negotiate an amended Stipulated Protective Order. Unfortunately,
24 there is one main issue in which the parties are unable to reach agreement. Namely, whether the
25
documents, materials, and information can be shared amongst the various cases currently pending
before this Court and other similarly situated plaintiffs throughout the nation with near identical
26
sexual assault cases against MEF and its franchise owners, including cases brought by one of the
27
very law firms involved in the instant litigation before this Court.
28
4
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 II. THE COURT’S POWERS REGARDING PROTECTIVE ORDERS
2 California Code of Civil Procedure (CCP) § 2031.060(a) authorizes Plaintiffs to file this
3 motion. The section reads, “When an inspection, copying, testing, or sampling of documents,
4 tangible things, places, or electronically stored information has been demanded, the party to whom
5 the demand has been directed, and any other party or affected person, may promptly move for a
6 protective order. This motion shall be accompanied by a meet and confer declaration under
7 Section 2016.040.” Under § 20301.060(b) the Court is empowered to issue a protective order to
8 address the concerns of the parties and issues orders “(4) That the inspection, copying, testing, or
9 sampling be made only on specified terms and conditions.” and (5) That a trade secret or other
10 confidential research, development, or commercial information “be disclosed only to specified
11 persons or only in a specified way.” Attached as Exhibit A to the Declaration of Robert W.
12 Thompson is the proposed Amended Stipulated Protective Order that Plaintiffs believe should
13 operate in this case. Plaintiffs are requesting the Court enter a Stipulated Protective Order using
14 this language, which allows for sharing of documents, materials and information deemed
15 confidential.
16 III. THE SHARING OR COMMON LITIGANT PROVISION
17
The main issue relating to the proposed SPO are found in Paragraphs 4 and 5 of the Order.
18
MEF wishes to control the potential group of people who can see information that is marked
19
confidential. The parties have agreed on the universe of persons who can see information that is
20
marked confidential, with one exception. Plaintiffs wish to have the right to use that information
21
amongst the Plaintiffs in this case and all related cases before this Court, and to show confidential
22
information to other attorneys prosecuting similar litigation against MEF so long as they agree to
23
be bound by the amended SPO. These attorneys are not competitors of MEF and showing the
24
information to the attorneys, assuming they agree to be bound by the protective order, will not
25
cause any competitive harm to MEF. Among the reasons that MEF objects to this provision are
26
that it wishes to protract this litigation, hamper Plaintiffs’ ability to demonstrate the fraud and
27
conspiracy outlined in the operative complaints, and to prevent Plaintiffs from talking and
28
working cooperatively with other litigants against MEF so as to share insight into prosecuting
5
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 claims against MEF. Further, MEF also does not want other litigants to learn of this case or its
2 facts. California law does not authorize, permit or sanction MEF attempts to try to protect its
3 litigation position via a protective order.
4 As discussed in more detail below, Plaintiffs wish to include a sharing provision in the
5 protective order that allows Plaintiffs’ counsel to share information among the many cases
6 pending before this Court and with similar attorneys prosecuting similar cases. Sharing provisions
7 are proper under California law and are frequently permitted in protective orders. The proposed
8 sharing provision in this case is at Paragraphs 4 and 5 reads:
9 All Confidential Information produced or exchanged in the course of this Action
10 (not including information that is publicly available) shall be used by the party or
11 parties to whom the information is produced solely for the purpose of this Action
12 and/or any action in which Confidential information is shared with counsel in
13 similar litigation, subject to the requirements set forth in paragraph 5 below.
14 Documents, materials, or testimony marked “Confidential” shall not be used for
15 any commercial, competitive, personal, or other purpose.
16 …
17 Confidential Information may be shared with and used by attorneys and parties in
18 similar litigation involving any of the Defendants1 conditioned upon: (a) Counsel
19 with whom such confidential information is to be shared with and/or used by has
20 agreed, in writing, to be bound by the provisions of this Order by signing the
21 Verification attached as Exhibit “A”; (b) Counsel for the party that produced the
22 Confidential Information is informed as to whom the Confidential Information
23 was shared with; and (c) There is an existing Protective Order in place consistent
24 with the terms of this Order in any action in which Confidential Information is to
25 be shared or used.
26
27
28
1
Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal. App. 4th 584.
6
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 IV. THE COURT SHOULD ENTER A PROTECTIVE ORDER THAT
INCLUDES THE REQUESTED SHARING PROVISION
2
3 Sharing provisions are a recognized procedure under California law pursuant to Raymond
4 Handling Concepts Corp. v. Superior Court (1995) 39 Cal. App. 4th 584, 598, which held that
5 allowing attorneys in similar litigation to have access to discovery materials produced in another
6 case, “is an effective means to insure full and fair disclosure.” In Raymond Handling, a product
7 liability action involving a defective forklift, the California Court of Appeal specifically approved
8 of a provision in a protective order permitting plaintiffs’ counsel to share documents received from
9 the defendant with litigants in similar cases, where such counsel agreed to be bound by the
10 protective order and defense counsel was notified when the disclosure was made. Id. at 591. In
11 Foltz v. State Farm Mutual Automobile Ins. Co. (2003) 331 F.3d 1122, 1131-32, the Ninth Circuit
12 also recognized the right of access to discovery materials by attorneys handling similar litigation,
13 stating that it “strongly favors access to discovery materials to meet the needs of parties engaged
14 in collateral litigation.... Allowing the fruits of one litigation to facilitate preparation of other cases
15 advances the interests of judicial economy by avoiding the wasteful duplication of discovery.”
16 The proposed amended SPO in this case contains sufficient provisions to ensure that
17 MEF’s documents will be adequately protected from falling into the hands of its competitors. It
18 limits access to those materials to attorneys handling cases before this Court and other courts
19 around the country involving MEF with similar sexual assault claims and who must agree to be
20 bound by the provisions of the amended SPO. The amended SPO also ensures that no attorney
21 outside these cases and other substantially similar litigation will be given the documents without
22 MEF’s awareness.
23 California law favors transparency in litigation, efficiency of judicial process and
24 individual access to justice. Accordingly, as stated in the California Code of Civil Procedure and
25 applied in numerous cases, a party seeking an order to limit access to documents in discovery
26 pursuant to C.C.P. § 2031(e) has the burden of establishing, by a showing of good cause, that
27 justice requires such an order to protect the party from unwarranted annoyance, embarrassment,
28 oppression, or undue burden and expense. GT, Inc., et al v. Superior Court (1984) 151 Cal.App.3d
748; see also, Joseph Stadish, et al v. Superior Court (1999) 71 Cal.App.4th 1130; Goodman v.
7
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 Citizens Life & Gas Insurance Company (1967) 253 Cal.App.2d 807. These authorities make clear
2 that protective orders that provide confidentiality to discovery materials are not routine and are in
3 fact prejudicial to a plaintiff. Indeed, one of the greatest problems with protective orders in
4 general, and restrictive non-sharing confidentiality orders in particular, is that defendants utilize
5 these tools to designate vast amounts of material and information as confidential, thus slowing the
6 already onerous task of identifying relevant documents.
7 To the extent that information has been publicly disclosed by a defendant and its attorneys
8 in other matters, it is not entitled to confidential treatment. See Universal City Studios, Inc. v.
9 Superior Court (2003) 110 Cal.App.4th 1273, 1286 (denying motion to seal as to category of
10 financial information because defendant’s “own voluntarily disclosure in an unsealed document it
11 filed in superior court where the information had been available for public review for over one
12 year substantially outweighs the confidentiality interests” of the financial information.) A trade
13 secret or proprietary information is not simply any material the withholding party would rather
14 keep confidential, but is “secret information essential to the continued operation of a business or
15 industry [that] may be afforded some measure of protection against unnecessary disclosure.” See
16 Law Revision Comment to Evidence Code section 1060 (1995).
17 Plaintiffs do not seek or wish to share documents with MEF’s competitors, nor is there any
18 threat that Plaintiffs will disseminate MEF’s documents to its competitors since they are bound by
19 the same terms and conditions of the amended SPO. Plaintiffs in this case are required to alert
20 MEF before they share any documents with other attorneys. Thus, MEF is granted significant
21 protection under the amended SPO.
22 In California, courts have generally held that a court may grant a protective order, only to
23 protect trade secret information or confidential research, development, or commercial information,
24 where disclosure would enable competitors of the defendant to exploit the information or would
25 put the defendant at a competitive disadvantage. Raymond Handling Concepts Corp. v. Superior
26 Court (1995) 39 Cal.App.4th 584; Westinghouse Electric Corp. v. Newman & Holtzinger (1995)
27 39 Cal.App.4th 1194. In considering such requests, “state[s] have two substantial interests in
28 regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The
8
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 second is to protect the legitimate privacy interest of the litigants and their parties.” Stadish,
2 supra, at 1145.
3 California law provides that sharing provisions, which allow attorneys in similar litigation
4 to have access to discovery materials produced in another case are “an effective means to insure
5 full and fair disclosure.” Raymond Handling at 598. In Raymond Handling, a product liability
6 action involving a defective forklift, the California Court of Appeal specifically approved of a
7 provision in a protective order permitting plaintiffs’ counsel to share documents received from the
8 defendant with litigants in similar cases, where such counsel agreed to be bound by the protective
9 order and defense counsel was notified when the disclosure was made. Id. at 591. In reaching this
10 conclusion, the Court noted that:
11 Shared discovery is an effective means to insure full and fair disclosure. Parties
subject to a number of suits concerning the same subject matter are forced to be
12
consistent in their responses by the knowledge that their opponents can compare
13 those responses. In addition to making discovery more truthful, shared discovery
makes the system itself more efficient. The current discovery process forces
14 similarly situated parties to go through the same discovery process time and time
15
again, even though the issues involved are virtually identical. Benefitting from
restrictions on discovery, one party facing a number of adversaries can require his
16 opponents to duplicate another’s discovery efforts, even though the opponents
share similar discovery needs and will litigate similar issues. Id. at 598.
17
18
The California Court of Appeal discussed the benefits that shared discovery provides as
19
follows: “Shared discovery is an effective means to insure full and fair disclosure. Parties subject
20 to a number of suits concerning the same subject matter are forced to be consistent in their
21
responses by the knowledge that their opponents can compare those responses ... in addition to
22
making discovery more truthful, shared discovery makes the system itself more efficient. The
23
current discovery process forces similarly situated parties to go through the same discovery
24 process time and time again, even though the issues involved are virtually identical. Benefiting
25 from restrictions on discovery, one party facing a number of adversaries can require his opponents
26
to duplicate another’s discovery efforts, even though the opponents share similar discovery needs
27
and will litigate similar issues. Discovery costs play no small part of the overall trial expense. See
28 Raymond, at 588; see also Fofe v. State Farm (9th Cir. 2003) 331 F.3d 1122, 1131-32 ("This court
strongly favors access to discovery materials to meet the needs of parties engaged in collateral
9
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 litigation.") (internal citations omitted); Olympic Relining Co. v. Carter (9th Cir. 1964) 332 F.2d
2 260, 267 (reversing trial court's protective orders that prevented plaintiff from using discovery
3 produced in similar, previous case); and Manual for Complex Litigation (4th), Federal Judicial
4 Center §§ 11.423; 40.27 (2004).
5 Similarly, in Foltz v. State Farm Mutual Automobile Ins. Co. (2003) 331 F.3d 1122, 1131-
6 32 also recognized the right of access to discovery materials by attorneys handling similar
7 litigation. The Court stated that it “strongly favors access to discovery materials to meet the needs
8 of parties engaged in collateral litigation.... Allowing the fruits of one litigation to facilitate
9 preparation of other cases advances the interests of judicial economy by avoiding the wasteful
10 duplication of discovery.” Ibid. See also, Largan Precision Co., Ltd. v. Fujinon Corp. (2011
11 N.D.Ca.) 2011 U.S. Dist. LEXIS 38132. Moreover, where reasonable restrictions on collateral
12 disclosure will continue to protect an affected party’s legitimate interests, the Ninth Circuit stated
13 that a collateral litigant’s request to the issuing court to modify an otherwise proper protective
14 order so that collateral litigants are not precluded from obtaining relevant material should
15 generally be granted. Foltz, supra at 1132. Thus, as set forth by Raymond Handling, without
16 reasonable sharing provisions, plaintiffs in similar cases have no way of verifying that MEF has
17 actually produced all documents responsive to their discovery requests necessary to enable other
18 plaintiffs to prove their claims. Overly restrictive and onerous protective orders provide a powerful
19 incentive for MEF to selectively produce documents in one case without producing them in other
20 cases where they will potentially be damaging.
21 Plaintiffs are severely prejudiced in product liability cases where discovery is exchanged
22 only under non-sharing protective orders and the situation is no different here. Without the ability
23 to exchange documents, plaintiffs litigating similar claims against MEF and its franchise
24 defendants are forced to fight over and over again for the production of thousands of documents.
25 In many cases, plaintiffs are even compelled to re-take the depositions of key witnesses regarding
26 such documents, despite the fact that they have been deposed numerous times in other cases, at
27 considerable expense, and without the benefit of having their prior testimony to be able to impeach
28 the witnesses or even determine if these witnesses ever deviated from their prior testimony
10
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 regarding the documents. The burden of non-sharing protective orders is not on litigants alone.
2 Such provisions inevitably require court intervention, and consequently, the expenditure of
3 significant court time and financial resources to resolve disputes related to these overly restrictive
4 provisions.
5 California is not alone in its approval of less restrictive, sharing protective orders in the
6 discovery process. For many decades, federal courts across the country have overwhelmingly and
7 decisively come down on the side of liberal sharing protective orders as a sound and effective
8 means of ensuring a speedy, just, and less expensive determination of cases on the facts and
9 merits. See Patterson v. Ford (1980) 85 F.R.D. 152; Ward v. Ford (1980) 93 F.R.D. 152;
10 Burlington City Board of Education v. United States Mineral Prods. Co. (M.D.N.C. 1987) 115
11 F.R.D. 188 (1987); Koval v. General Motors (1990) 610 N.E.2d 1199; U.S. v. Hooker Chemicals
12 & Plastics Corp. (1981) 90 F.R.D. 421 [“Use of the discovery fruits disclosed in one lawsuit in
13 connection with other litigation, and even in collaboration among-plaintiffs’ attorneys, comes
14 squarely within the purpose of the Federal Rules of Civil Procedure. Such cooperation among
15 litigants promotes the speedy and inexpensive determination of every action as well as
16 conservation of judicial resources. This is particularly the case in lawsuits where the available
17 resources to the parties are uneven....”]
18 Sharing protective orders promote efficiency, minimize discovery costs, ensure full and
19 fair disclosure by defendants, and promote judicial economy. The majority of courts across the
20 country have allowed the sharing of information between plaintiffs’ counsel. See e.g., Kamp
21 Implement Co., Inc. v. J.I. Case Co. (D. Mont. 1986) 630 F.Supp. 218, 219 [Collecting cases and
22 recognizing, “of the courts that have considered protective orders of the nature proposed by
23 defendant, an overwhelming majority have refused to grant any type of protection from
24 dissemination.”]; Wolhar v. General Motors Corp. (Del. 1997) 712 A.2d 464, 467 [“The great
25 weight of authority in other jurisdictions holds that such sharing is not only theoretically sound but
26 also justified as an efficient use of the resources of the courts and the parties.”].)
27 Plaintiffs have no intention whatsoever of exchanging any confidential material to any of
28 MEF’s competitors. MEF is aware of this fact, but consistently argues that by sharing information
11
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 with other attorneys, who are legally bound by the provisions of a protective order (and sign
2 written assurances to that effect), Plaintiffs’ counsel will be disseminating confidential trade
3 secrets to its competitors. This is simply not the case. There is no evidence at all that any
4 plaintiff’s attorneys have ever disseminated MEF’s confidential information to anyone other than
5 another attorney or expert witnesses.
6 Courts have consistently recognized that information exchange between plaintiffs’ counsel
7 is not only authorized, it is also encouraged and can be done without risking the unbridled
8 dissemination of a defendant’s confidential information. Grange Mutual Insurance Co. v. Trude
9 (Ky. 2004) 151 S.W.3d 803, 814 [“That discovery might be useful in other litigation or other
10 proceedings is actually a good thing because it furthers one of the driving forces behind the Civil
11 Rules by allowing the cost of repeating the discovery process to be avoided and thereby
12 encouraging the efficient administration of justice.”] The sharing of information amongst lawyers
13 subject to a protective order also promotes speedy, efficient, and inexpensive litigation by orderly
14 facilitating the dissemination of discovery material. Burlington City Board of Educ. v. United
15 States Mineral Prod Co., Inc. (M.D.N.C. 1987) 115 F.R.D. 188, 190 [Collecting cases and noting,
16 “the sharing of information between even diverse plaintiffs promotes speedy, efficient and
17 inexpensive litigation by facilitating the dissemination of discovery material necessary to analyze
18 one’s case and prepare for trial.”].)
19 This is because sharing protective orders level the playing field between plaintiffs and
20 defendants by lessening the financial burden on injured plaintiffs who are forced to sue large
21 corporations. Burlington City, supra, at 190 [“Permitting plaintiffs to share information helps
22 counterbalance the effect uneven financial resources between parties might otherwise have on the
23 discovery process, thereby protecting economically modest plaintiffs faced with financially well
24 off defendants and improving accessibility to justice.”] By reducing the costs of discovery, sharing
25 protective orders increase plaintiffs’ access to justice and lessen defendants’ incentive to
26 purposefully increase the costs of litigation.
27 The exchange of information between Plaintiffs’ counsel in this action and plaintiffs’
28 counsel pursuing similar actions against MEF is even more appropriate since Plaintiffs are suing
12
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 MEF and its franchise owners for fraudulent concealment and conspiracy to keep secret the
2 rampant problem of sexual assaults happening within its spas throughout the country, which poses
3 an ongoing risk to women stepping foot inside those spas to this very day. Wolhar, supra, 712
4 A.2d at 467 [“Sharing of discovery materials is particularly appropriate where multiple individual
5 plaintiffs assert essentially the same alleged wrongs against a national manufacturer of a consumer
6 product.”]; Deford v. Schmid Prod. Co. (D.Md. 1987) 120 F.R.D. 648, 654 [“Sharing discovery
7 materials may be particularly appropriate where multiple individual plaintiffs assert essentially the
8 same alleged wrongs against a national manufacturer of a consumer product”]; Ward v. Ford
9 Motor Co. (D. Colo. 1982) 93 F.R.D. 579,580.
10 Plaintiffs anticipate that there are very few documents or categories of documents that will
11 be truly at issue here. In addition, of those documents at issue, there will be even fewer that will
12 involve true contests over discoverability. That is to say, while MEF will no doubt fight over the
13 production of nearly every document at issue here, the discoverability of those same documents
14
has already been adjudged by this Court or others across the country. For example, while MEF
may contest the production of documents underlying and/or used to formulate policies, documents
15
related to other assaults by a subject therapist or other assaults at a particular franchise, or
16
customer lists, these issues have already been decided in Plaintiff’s favor during Informal
17
Discovery Conferences by this Court or in other courts with identical counsel in other states.
18
Issues surrounding access to MEF’s full repository of sexual assault complaints and full and
19
complete information regarding their work with the Rape, Abuse, and Incest National Network
20 (“RAINN”) may be the only contested issues not already decided by this or other Courts.
21 Therefore, under these circumstances, the sharing of documents across all cases is a necessity.
22 The amended SPOT sufficiently balances the numerous benefits of sharing discovery
23 amongst plaintiffs’ counsel with MEF’s interests in protecting its allegedly confidential business
24 information. Specifically, before any Plaintiffs counsel in another case is able to obtain relevant
25 documents, he or she must agree to be bound by the terms of amended SPO in this case, and must
26 expressly agree not to disseminate such materials to MEF’s competitors. These are adequate
27 safeguards to protect MEF’s documents should they be disseminated to other counsel. Thus,
28 Plaintiffs ask for an order allowing sharing with a limited class of plaintiffs in case before this
Court and other similarly situated plaintiffs, where anyone receiving documents must also agree to
13
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 be bound by the protective order and subject themselves to the Court's jurisdiction for
2 enforcement. A non-sharing protective order will subject Plaintiffs to the unnecessary and
3 unreasonable burden of wading through MEF and other franchise defendants’ "confidential"
4 document productions with no assistance from similarly situated litigants, repetitive motions to
5 compel and depositions, and prevent Plaintiffs from proving their claims.
6 V. CONCLUSION
7
The current Proposed Order provides adequate safeguards against the dissemination of
8
confidential information to MEF’s competitors. Therefore, Plaintiffs respectfully request this
9 Court enter a protective order consistent with the terms set out in Exhibit A.
10
11 Dated: February 26, 2021 THOMPSON LAW OFFICES, P.C.
12
13
By: _______________________
ROBERT THOMPSON
14
Attorneys for Plaintiffs
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
1 DECLARATION OF ROBERT W. THOMPSON
2
I, Robert W. Thompson, declare,
3
1. I am an attorney duly licensed to practice law before all courts in the State of
4
California. I am the founding partner of Thompson Law Offices, P.C., counsel of record for
5
Plaintiffs in this action. I make this declaration based on my personal knowledge, and, if required
6
to do so, I can testify competently as to the matters contained below.
7
2. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs’ proposed
8
Amended Stipulated Protective Order.
9
3. Attached hereto as Exhibit B is a true and correct copy of relevant portions of co-
10
defendant Eastlake Village, LLC’s Response to Plaintiffs’ Request for Production of Documents.
11
I declare under penalty of perjury under the laws of State of California that the foregoing is
12
true and correct and this declaration was executed on the 26th day of February 2021 in
13
Burlingame, California.
14
15
By:_______________________________
16
Robert W. Thompson, Esq.
17 Attorney for Plaintiffs
18
19
20
21
22
23
24
25
26
27
28
15
_______________________________________________________________________________________________
PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER
EXHIBIT A
1 Luanne Sacks (SBN 120811) Robert W. Thompson (SBN 250038)
Michele Floyd (SBN 163031) Kristen A. Vierhaus (SBN 322778)
2 Robert B. Bader (SBN 233165) THOMPSON LAW OFFICES, P.C.
Jacqueline Young (SBN 280374) 700 Airport Blvd., Suite 160
3 SACKS, RICKETTS & CASE, LLP Burlingame, CA 94010
177 Post Street, Suite 650 Tel: (650) 513-6111
4 San Francisco, CA 94108 Fax: (650) 513-6071
Phone: 415.549.0580
5 Fax: 415.549.0640 Elise R. Sanguinetti (SBN 191389)
Jamie G. Goldstein (SBN 302479)
6 Robert Atkins (admitted pro hac vice) ARIAS, SANGUINETTI, WANG &
Jacqueline P. Rubin (admitted pro hac vice) TORRIJOS, LLP
7 PAUL, WEISS, RIFKIND, WHARTON & 2200 Powell Street, Suite 740
GARRISON LLP Emeryville, CA 94608
8 1285 Avenue of the Americas Tel: (510) 629-4877
New York, NY 10019 Fax: (510) 491-9742
9 Phone: 212.373.3056
Fax: 212.492.0056 Brian D. Kent
10 V. Paul Bucci, II (admitted pro hac vice)
Attorneys for Defendant M. Stewart Ryan (admitted pro hac vice)
11 Massage Envy Franchising, LLC LAFFEY, BUCCI & KENT, LLP
1100 Ludlow Street, Suite 300
12 Philadelphia, PA 19107
Tel: (215) 399-9255
13 Fax: (215) 241-8700
14 Attorneys for Plaintiffs
15
SUPERIOR COURT OF THE STATE OF CALIFORNIA
16
COUNTY OF SAN MATEO
17
UNLIMITED CIVIL JURISDICTION
18
JANE DOE #1 (N.K.); ASSIGNED FOR ALL PURPOSES TO
19 DEPARTMENT 2
Plaintiff,
20
v. Case No. 18CIV03706 [AND ALL
21 MASSAGE ENVY FRANCHISING, LLC; ME RELATED CASES]
TIME, INC.; ANGELINE SEBASTIAN-
22 STAFFORD; and DOES 1-400, inclusive; AMENDED STIPULATED
PROTECTIVE ORDER REGARDING
23 Defendants. CONFIDENTIAL INFORMATION
24
25
26
27
28
AMENDED STIPULATED PROTECTIVE ORDER
CASE NO. 18CIV03706 [AND ALL RELATED CASES]
1 In order to protect Confidential Information obtained by the parties in connection with
2 this case, 18CIV03706 (“Action”), the parties, by and through their respective undersigned
3 counsel and subject to the approval of the Court, hereby agree as follows in this Stipulated
4 Protective Order (“Order”):
5 Part One: Use Of Confidential Materials In Discovery
6 1. Any party or non-party may designate as “Confidential” (by stamping the relevant
7 page or as otherwise set forth herein) any document that such party or non-party produces or
8 any response to written discovery or subpoena that such party or non-party provides which that
9 party or non-party considers in good faith to contain Confidential Information. “Confidential
10 Information” is defined and will be determined by applicable California law pertaining to
11 same. Where a document or response to written discovery or subpoena consists of more than
12 one page, the first page and each page on which Confidential Information appears shall be so
13 designated. Where a document is produced in native or other electronic form or an electronic
14 copy of a paper document is produced, the document shall be designated as confidential by
15 including the term “Confidential” in the file name of the document. For any other tangible
16 items, including, without limitation, compact discs or DVDs, the designating party must affix
17 in a prominent place on the exterior of the container or containers in which the Confidential
18 Information is stored the legend “Confidential.” If a party produces materials designated
19 Confidential in compliance with this Order, that production shall be deemed to have been
20 made consistent with any confidentiality or privacy requirements mandated by local, state or
21 federal laws.
22 2. Any party may designate as “Confidential” documents or responses to written
23 discovery produced by another party or non-party which the non-producing party considers in
24 good faith to contain Confidential Information. Such designation must be made in writing to
25 the other parties, and any non-party that produced the Confidential Information (if applicable),
26 within thirty (30) days of receipt of the document or written response and shall identify the
27 relevant Bates numbers or other identification along with the legal basis for such designation.
28 Any other party may object to such designation by following the procedures described in
-1-
AMENDED STIPULATED PROTECTIVE ORDER
CASE NO. 18CIV03706
1 Paragraph 10 below. The designated documents or responses to written discovery shall be
2 treated in accordance with the “Confidential” designation until the matter is resolved pursuant
3 to the procedures described in Paragraph 10 below.
4 3. A party or non-party may designate information or documents disclosed during a
5 deposition as “Confidential” by so indicating on the record at the deposition and requesting the
6 preparation of a separate transcript of such material. In the alternative, a party or non-party
7 may designate in writing, within thirty (30) days after receipt of the deposition transcript from
8 the court reporter for which the designation is proposed, that specific pages and lines of the
9 transcript or documents be treated as “Confidential,” along with a legal basis for the
10 designation. For purposes of this provision, receipt of a transcript in “rough” format shall not
11 initiate the designation accrual period. Any other party may object to such designation, in
12 writing or on the record. Upon such objection, the parties shall follow the procedures described
13 in Paragraph 10 below. After any designation made according to the procedure set forth in this
14 paragraph, the designated documents or information shall be treated as “Confidential” in
15 accordance with the designation until the matter is resolved according to the procedures
16 described in Paragraph 10 below. A party that makes original documents or materials available
17 for inspection need not designate them as “Confidential” until after the inspecting party has
18 indicated which materials it would like copied and produced. During the inspection and before
19 the designation and copying, all of the material made available for inspection shall be
20 considered “Confidential” if a party so designates them as “Confidential” during the
21 inspection.
22 4. All Confidential Information produced or exchanged in the course of this Action
23 (not including information that is publicly available) shall be used by the party or parties to
24 whom the information is produced solely for the purpose of this Action and/or any action in
25 which Confidential information is shared with counsel in similar litigation, subject to the
26 requirements set forth in paragraph 5 below. Documents, materials, or testimony marked
27 “Confidential” shall not be used for any commercial, competitive, personal, or other purpose.
28 5. Confidential Information may be shared with and used by attorneys and parties in
-2-
Preview
1 Robert W. Thompson, Esq. (SBN: 250038) THOMPSON LAW OFFICES, P.C. 2 700 Airport Boulevard, Suite 160 3 Burlingame, CA 94010 Telephone: (650) 513-6111 4 Facsimile: (650) 513-6071 5 3/18/2021 Brian D. Kent (Admitted Pro Hac Vice) 6 LAFFEY, BUCCI & KENT, LLP 1100 Ludlow Street, Suite 300 7 Philadelphia, PA 19107 8 Telephone: (215) 399-9255 Facsimile: (215) 241-8700 9 Attorneys for Plaintiff JANE DOES 10 11 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 UNLIMITED CIVIL JURISDICTION 14 JANE DOE, ) Case No.: 18CIV03706 15 ) Plaintiff, [Assigned for all purposes to the Honorable 16 ) Marie S. Weiner, Department 2] ) 17 vs. PLAINTIFFS’ MOTION FOR AMENDED ) 18 MASSAGE ENVY FRANCHISING, LLC; et ) PROTECTIVE ORDER al., ) 3/30/2021 19 ) Date: March 23, 2021 Defendants. ) Time: 2:00 p.m. 20 Dept.: 2 ) 21 ) ) 22 ) ) 23 24 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 25 Please take notice that on March 23, 2021, at 2:00 p.m. in the above referenced Court, 26 Plaintiffs will, pursuant to California Code of Civil Procedure § 2031.060, move to have this 27 Court enter an amended protective order governing the production of certain discovery in this 28 matter on the following grounds: 1 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 (1) Plaintiffs have demanded production of certain documents, materials, and information 2 from Defendants in discovery. Defendants have agreed to produce documents, 3 materials, and information it contends are responsive to the discovery requests. 4 However, Defendants claim that the documents, materials, and information it has 5 produced or wishes to produce are confidential and that such documents, materials, and information cannot be shared or used in the various cases before this Court or similar 6 litigants suing the Defendants, many represented by the same counsel, for nearly 7 identical sexual assaults. 8 (2) Pursuant to California Code of Civil Procedure § 2031.060(a) and § 2016.040, the 9 parties have met and conferred extensively regarding the language to be contained 10 within a protective order, and discussed the protective order with this Court. The 11 parties are largely in agreement on most of the language that should be contained in the 12 protective order. Unfortunately, the parties have not been able to reach a final 13 agreement on all the language for the protective order. 14 (3) As such, pursuant to California Code of Civil Procedure § 2031.060(b), Plaintiffs seek 15 an order from the Court to enter a protective order governing the production discovery in this case consistent with the proposed amended protective order attached as Exhibit 16 A to the Declaration of Robert W. Thompson. Plaintiffs’ requested amended protective 17 order appropriately balances Defendants’ request for confidentiality in a manner 18 consistent with California law, public policy of the state, and in a manner that does not 19 pose an undue burden on Plaintiffs. 20 Plaintiffs’ motion is based on the attached memorandum of points and authorities, the 21 declaration of Robert W. Thompson and attached exhibits, the declaration of Brian D. Kent, all 22 pleadings on file in this matter, and all evidence and argument presented by Plaintiffs at a hearing 23 on this matter. 24 Dated: February 26, 2021 THOMPSON LAW OFFICES, P.C. 25 By: _______________________ 26 ROBERT THOMPSON 27 Attorneys for Plaintiffs 28 2 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 MEMORANDUM OF POINTS AND AUTHORITY 2 I. INTRODUCTION 3 Defendant Massage Envy Franchising, LLC (“MEF”) boasts a billion-dollar business that 4 falsely promises safety in the treatment room for massage and spa services at an affordable price 5 while intentionally concealing the known dangers of their services to women at their locations in 6 California and throughout the country. MEF and approximately 40 co-defendant franchise 7 owners’ policies and procedures ultimately allowed their massage therapists to sexually assault 8 Plaintiffs. MEF and its co-defendant franchise owners, falsely promised a safe massage free from 9 inappropriate touching of female genitalia and/or breasts, while intentionally concealing the fact that it knowingly employed massage therapists that commit sexual assaults on unwitting 10 customers, such as the Plaintiffs in these cases. They also promised Plaintiffs that they had a 11 “zero tolerance” policy against allowing sexual assaults by their massage therapists. MEF and its 12 co-defendant franchise owners knew these promises were false and were known to be false when 13 they were made to Plaintiffs. They did this with actual knowledge that hundreds (if not thousands) 14 of women were sexually assaulted by their massage therapists, and that their policies and 15 procedures were ineffective to prevent these assaults. They knew if they disclosed the rampant 16 problem of sexual assaults occurring within their business or in the very least even warned of the 17 known danger within its company, then it would fail and these Plaintiffs would never have 18 purchased massage services. 19 Due to MEF and its co-defendant franchise owners’ conspiracy to conceal the dangers associated with their business, Plaintiffs had no knowledge of the magnitude of sexual assaults 20 happening at Massage Envy before they purchased massage services. A former MEF employee 21 put it this way: “[The internal review policy] is not in place to protect the client. It’s in place to 22 protect the company. It’s centered around defusing the situation so the client doesn’t call the 23 police. You don’t want cop cars showing up at your location the next day.” According to a former 24 corporate executive, Defendants’ leadership has long feared the media, and therefore, the public 25 would realize the national scope of the problem. That person recalled executives discussing what 26 would happen “if someone connects the dots of how many sexual assaults have occurred across 27 the country.” Defendants train their employees that the goal when investigating sexual assault 28 claims is “to avoid police and keep membership.” Defendant MEF and its counsel have utilized protective orders in cases throughout the 3 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 country as a sword to attempt to shield them from producing relevant information, documents and 2 deposition testimony from prior or concurrent cases, even discovery propounded and taken by 3 counsel in this case, from this litigation or current litigation in other states. See Declaration of 4 Brian D. Kent. In essence, despite Plaintiffs’ counsel knowing that relevant and discoverable 5 information from cases it has or is currently litigating exists, Plaintiffs cannot use same because of the intricate web Defendants have set up in all of the cases in which they were sued as a result of a 6 massage therapist sexually assaulting a customer. This is not the purpose of a protective order. 7 Additionally, in this case, Plaintiffs have propounded a number of requests in discovery for 8 MEF and the franchise defendants to produce documents, materials, and information relevant to 9 Plaintiffs’ claims and Defendants’ defenses in this matter. MEF and the franchise defendants have 10 produced some documents, material, and information responsive to the requests. Many of these 11 documents, materials and information were deemed confidential and subject to a stipulated 12 protective order in place to protect the confidentiality of such documents. Multiple co-defendants 13 have responded by identifying documents produced by their co-conspirator, co-defendant 14 franchise owners as being responsive to document requests propounded by Plaintiffs while MEF is 15 taking the position that documents it produces in Jane #1’s case cannot be used in Jane Doe #2, #4, or #5’s cases. MEF is also taking the position that a deposition from Jane Doe #1’s case 16 cannot be used Jane Doe #2, #4, or #5’s cases. Lastly, MEF is also taking the position that 17 Plaintiffs’ counsel cannot share documents and depositions with other similarly situated plaintiffs 18 who are also suing MEF as a result to being sexual assaulted, even Plaintiffs who are represented 19 by counsel in this case. This will essentially result in hundreds of cumulative depositions, 20 document productions, etc. and will allow MEF to continue to use the protective order as a sword 21 instead of a shield. 22 During meet and confer efforts and multiple Informal Discovery Conferences with this 23 Court, the parties attempted to negotiate an amended Stipulated Protective Order. Unfortunately, 24 there is one main issue in which the parties are unable to reach agreement. Namely, whether the 25 documents, materials, and information can be shared amongst the various cases currently pending before this Court and other similarly situated plaintiffs throughout the nation with near identical 26 sexual assault cases against MEF and its franchise owners, including cases brought by one of the 27 very law firms involved in the instant litigation before this Court. 28 4 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 II. THE COURT’S POWERS REGARDING PROTECTIVE ORDERS 2 California Code of Civil Procedure (CCP) § 2031.060(a) authorizes Plaintiffs to file this 3 motion. The section reads, “When an inspection, copying, testing, or sampling of documents, 4 tangible things, places, or electronically stored information has been demanded, the party to whom 5 the demand has been directed, and any other party or affected person, may promptly move for a 6 protective order. This motion shall be accompanied by a meet and confer declaration under 7 Section 2016.040.” Under § 20301.060(b) the Court is empowered to issue a protective order to 8 address the concerns of the parties and issues orders “(4) That the inspection, copying, testing, or 9 sampling be made only on specified terms and conditions.” and (5) That a trade secret or other 10 confidential research, development, or commercial information “be disclosed only to specified 11 persons or only in a specified way.” Attached as Exhibit A to the Declaration of Robert W. 12 Thompson is the proposed Amended Stipulated Protective Order that Plaintiffs believe should 13 operate in this case. Plaintiffs are requesting the Court enter a Stipulated Protective Order using 14 this language, which allows for sharing of documents, materials and information deemed 15 confidential. 16 III. THE SHARING OR COMMON LITIGANT PROVISION 17 The main issue relating to the proposed SPO are found in Paragraphs 4 and 5 of the Order. 18 MEF wishes to control the potential group of people who can see information that is marked 19 confidential. The parties have agreed on the universe of persons who can see information that is 20 marked confidential, with one exception. Plaintiffs wish to have the right to use that information 21 amongst the Plaintiffs in this case and all related cases before this Court, and to show confidential 22 information to other attorneys prosecuting similar litigation against MEF so long as they agree to 23 be bound by the amended SPO. These attorneys are not competitors of MEF and showing the 24 information to the attorneys, assuming they agree to be bound by the protective order, will not 25 cause any competitive harm to MEF. Among the reasons that MEF objects to this provision are 26 that it wishes to protract this litigation, hamper Plaintiffs’ ability to demonstrate the fraud and 27 conspiracy outlined in the operative complaints, and to prevent Plaintiffs from talking and 28 working cooperatively with other litigants against MEF so as to share insight into prosecuting 5 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 claims against MEF. Further, MEF also does not want other litigants to learn of this case or its 2 facts. California law does not authorize, permit or sanction MEF attempts to try to protect its 3 litigation position via a protective order. 4 As discussed in more detail below, Plaintiffs wish to include a sharing provision in the 5 protective order that allows Plaintiffs’ counsel to share information among the many cases 6 pending before this Court and with similar attorneys prosecuting similar cases. Sharing provisions 7 are proper under California law and are frequently permitted in protective orders. The proposed 8 sharing provision in this case is at Paragraphs 4 and 5 reads: 9 All Confidential Information produced or exchanged in the course of this Action 10 (not including information that is publicly available) shall be used by the party or 11 parties to whom the information is produced solely for the purpose of this Action 12 and/or any action in which Confidential information is shared with counsel in 13 similar litigation, subject to the requirements set forth in paragraph 5 below. 14 Documents, materials, or testimony marked “Confidential” shall not be used for 15 any commercial, competitive, personal, or other purpose. 16 … 17 Confidential Information may be shared with and used by attorneys and parties in 18 similar litigation involving any of the Defendants1 conditioned upon: (a) Counsel 19 with whom such confidential information is to be shared with and/or used by has 20 agreed, in writing, to be bound by the provisions of this Order by signing the 21 Verification attached as Exhibit “A”; (b) Counsel for the party that produced the 22 Confidential Information is informed as to whom the Confidential Information 23 was shared with; and (c) There is an existing Protective Order in place consistent 24 with the terms of this Order in any action in which Confidential Information is to 25 be shared or used. 26 27 28 1 Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal. App. 4th 584. 6 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 IV. THE COURT SHOULD ENTER A PROTECTIVE ORDER THAT INCLUDES THE REQUESTED SHARING PROVISION 2 3 Sharing provisions are a recognized procedure under California law pursuant to Raymond 4 Handling Concepts Corp. v. Superior Court (1995) 39 Cal. App. 4th 584, 598, which held that 5 allowing attorneys in similar litigation to have access to discovery materials produced in another 6 case, “is an effective means to insure full and fair disclosure.” In Raymond Handling, a product 7 liability action involving a defective forklift, the California Court of Appeal specifically approved 8 of a provision in a protective order permitting plaintiffs’ counsel to share documents received from 9 the defendant with litigants in similar cases, where such counsel agreed to be bound by the 10 protective order and defense counsel was notified when the disclosure was made. Id. at 591. In 11 Foltz v. State Farm Mutual Automobile Ins. Co. (2003) 331 F.3d 1122, 1131-32, the Ninth Circuit 12 also recognized the right of access to discovery materials by attorneys handling similar litigation, 13 stating that it “strongly favors access to discovery materials to meet the needs of parties engaged 14 in collateral litigation.... Allowing the fruits of one litigation to facilitate preparation of other cases 15 advances the interests of judicial economy by avoiding the wasteful duplication of discovery.” 16 The proposed amended SPO in this case contains sufficient provisions to ensure that 17 MEF’s documents will be adequately protected from falling into the hands of its competitors. It 18 limits access to those materials to attorneys handling cases before this Court and other courts 19 around the country involving MEF with similar sexual assault claims and who must agree to be 20 bound by the provisions of the amended SPO. The amended SPO also ensures that no attorney 21 outside these cases and other substantially similar litigation will be given the documents without 22 MEF’s awareness. 23 California law favors transparency in litigation, efficiency of judicial process and 24 individual access to justice. Accordingly, as stated in the California Code of Civil Procedure and 25 applied in numerous cases, a party seeking an order to limit access to documents in discovery 26 pursuant to C.C.P. § 2031(e) has the burden of establishing, by a showing of good cause, that 27 justice requires such an order to protect the party from unwarranted annoyance, embarrassment, 28 oppression, or undue burden and expense. GT, Inc., et al v. Superior Court (1984) 151 Cal.App.3d 748; see also, Joseph Stadish, et al v. Superior Court (1999) 71 Cal.App.4th 1130; Goodman v. 7 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 Citizens Life & Gas Insurance Company (1967) 253 Cal.App.2d 807. These authorities make clear 2 that protective orders that provide confidentiality to discovery materials are not routine and are in 3 fact prejudicial to a plaintiff. Indeed, one of the greatest problems with protective orders in 4 general, and restrictive non-sharing confidentiality orders in particular, is that defendants utilize 5 these tools to designate vast amounts of material and information as confidential, thus slowing the 6 already onerous task of identifying relevant documents. 7 To the extent that information has been publicly disclosed by a defendant and its attorneys 8 in other matters, it is not entitled to confidential treatment. See Universal City Studios, Inc. v. 9 Superior Court (2003) 110 Cal.App.4th 1273, 1286 (denying motion to seal as to category of 10 financial information because defendant’s “own voluntarily disclosure in an unsealed document it 11 filed in superior court where the information had been available for public review for over one 12 year substantially outweighs the confidentiality interests” of the financial information.) A trade 13 secret or proprietary information is not simply any material the withholding party would rather 14 keep confidential, but is “secret information essential to the continued operation of a business or 15 industry [that] may be afforded some measure of protection against unnecessary disclosure.” See 16 Law Revision Comment to Evidence Code section 1060 (1995). 17 Plaintiffs do not seek or wish to share documents with MEF’s competitors, nor is there any 18 threat that Plaintiffs will disseminate MEF’s documents to its competitors since they are bound by 19 the same terms and conditions of the amended SPO. Plaintiffs in this case are required to alert 20 MEF before they share any documents with other attorneys. Thus, MEF is granted significant 21 protection under the amended SPO. 22 In California, courts have generally held that a court may grant a protective order, only to 23 protect trade secret information or confidential research, development, or commercial information, 24 where disclosure would enable competitors of the defendant to exploit the information or would 25 put the defendant at a competitive disadvantage. Raymond Handling Concepts Corp. v. Superior 26 Court (1995) 39 Cal.App.4th 584; Westinghouse Electric Corp. v. Newman & Holtzinger (1995) 27 39 Cal.App.4th 1194. In considering such requests, “state[s] have two substantial interests in 28 regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The 8 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 second is to protect the legitimate privacy interest of the litigants and their parties.” Stadish, 2 supra, at 1145. 3 California law provides that sharing provisions, which allow attorneys in similar litigation 4 to have access to discovery materials produced in another case are “an effective means to insure 5 full and fair disclosure.” Raymond Handling at 598. In Raymond Handling, a product liability 6 action involving a defective forklift, the California Court of Appeal specifically approved of a 7 provision in a protective order permitting plaintiffs’ counsel to share documents received from the 8 defendant with litigants in similar cases, where such counsel agreed to be bound by the protective 9 order and defense counsel was notified when the disclosure was made. Id. at 591. In reaching this 10 conclusion, the Court noted that: 11 Shared discovery is an effective means to insure full and fair disclosure. Parties subject to a number of suits concerning the same subject matter are forced to be 12 consistent in their responses by the knowledge that their opponents can compare 13 those responses. In addition to making discovery more truthful, shared discovery makes the system itself more efficient. The current discovery process forces 14 similarly situated parties to go through the same discovery process time and time 15 again, even though the issues involved are virtually identical. Benefitting from restrictions on discovery, one party facing a number of adversaries can require his 16 opponents to duplicate another’s discovery efforts, even though the opponents share similar discovery needs and will litigate similar issues. Id. at 598. 17 18 The California Court of Appeal discussed the benefits that shared discovery provides as 19 follows: “Shared discovery is an effective means to insure full and fair disclosure. Parties subject 20 to a number of suits concerning the same subject matter are forced to be consistent in their 21 responses by the knowledge that their opponents can compare those responses ... in addition to 22 making discovery more truthful, shared discovery makes the system itself more efficient. The 23 current discovery process forces similarly situated parties to go through the same discovery 24 process time and time again, even though the issues involved are virtually identical. Benefiting 25 from restrictions on discovery, one party facing a number of adversaries can require his opponents 26 to duplicate another’s discovery efforts, even though the opponents share similar discovery needs 27 and will litigate similar issues. Discovery costs play no small part of the overall trial expense. See 28 Raymond, at 588; see also Fofe v. State Farm (9th Cir. 2003) 331 F.3d 1122, 1131-32 ("This court strongly favors access to discovery materials to meet the needs of parties engaged in collateral 9 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 litigation.") (internal citations omitted); Olympic Relining Co. v. Carter (9th Cir. 1964) 332 F.2d 2 260, 267 (reversing trial court's protective orders that prevented plaintiff from using discovery 3 produced in similar, previous case); and Manual for Complex Litigation (4th), Federal Judicial 4 Center §§ 11.423; 40.27 (2004). 5 Similarly, in Foltz v. State Farm Mutual Automobile Ins. Co. (2003) 331 F.3d 1122, 1131- 6 32 also recognized the right of access to discovery materials by attorneys handling similar 7 litigation. The Court stated that it “strongly favors access to discovery materials to meet the needs 8 of parties engaged in collateral litigation.... Allowing the fruits of one litigation to facilitate 9 preparation of other cases advances the interests of judicial economy by avoiding the wasteful 10 duplication of discovery.” Ibid. See also, Largan Precision Co., Ltd. v. Fujinon Corp. (2011 11 N.D.Ca.) 2011 U.S. Dist. LEXIS 38132. Moreover, where reasonable restrictions on collateral 12 disclosure will continue to protect an affected party’s legitimate interests, the Ninth Circuit stated 13 that a collateral litigant’s request to the issuing court to modify an otherwise proper protective 14 order so that collateral litigants are not precluded from obtaining relevant material should 15 generally be granted. Foltz, supra at 1132. Thus, as set forth by Raymond Handling, without 16 reasonable sharing provisions, plaintiffs in similar cases have no way of verifying that MEF has 17 actually produced all documents responsive to their discovery requests necessary to enable other 18 plaintiffs to prove their claims. Overly restrictive and onerous protective orders provide a powerful 19 incentive for MEF to selectively produce documents in one case without producing them in other 20 cases where they will potentially be damaging. 21 Plaintiffs are severely prejudiced in product liability cases where discovery is exchanged 22 only under non-sharing protective orders and the situation is no different here. Without the ability 23 to exchange documents, plaintiffs litigating similar claims against MEF and its franchise 24 defendants are forced to fight over and over again for the production of thousands of documents. 25 In many cases, plaintiffs are even compelled to re-take the depositions of key witnesses regarding 26 such documents, despite the fact that they have been deposed numerous times in other cases, at 27 considerable expense, and without the benefit of having their prior testimony to be able to impeach 28 the witnesses or even determine if these witnesses ever deviated from their prior testimony 10 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 regarding the documents. The burden of non-sharing protective orders is not on litigants alone. 2 Such provisions inevitably require court intervention, and consequently, the expenditure of 3 significant court time and financial resources to resolve disputes related to these overly restrictive 4 provisions. 5 California is not alone in its approval of less restrictive, sharing protective orders in the 6 discovery process. For many decades, federal courts across the country have overwhelmingly and 7 decisively come down on the side of liberal sharing protective orders as a sound and effective 8 means of ensuring a speedy, just, and less expensive determination of cases on the facts and 9 merits. See Patterson v. Ford (1980) 85 F.R.D. 152; Ward v. Ford (1980) 93 F.R.D. 152; 10 Burlington City Board of Education v. United States Mineral Prods. Co. (M.D.N.C. 1987) 115 11 F.R.D. 188 (1987); Koval v. General Motors (1990) 610 N.E.2d 1199; U.S. v. Hooker Chemicals 12 & Plastics Corp. (1981) 90 F.R.D. 421 [“Use of the discovery fruits disclosed in one lawsuit in 13 connection with other litigation, and even in collaboration among-plaintiffs’ attorneys, comes 14 squarely within the purpose of the Federal Rules of Civil Procedure. Such cooperation among 15 litigants promotes the speedy and inexpensive determination of every action as well as 16 conservation of judicial resources. This is particularly the case in lawsuits where the available 17 resources to the parties are uneven....”] 18 Sharing protective orders promote efficiency, minimize discovery costs, ensure full and 19 fair disclosure by defendants, and promote judicial economy. The majority of courts across the 20 country have allowed the sharing of information between plaintiffs’ counsel. See e.g., Kamp 21 Implement Co., Inc. v. J.I. Case Co. (D. Mont. 1986) 630 F.Supp. 218, 219 [Collecting cases and 22 recognizing, “of the courts that have considered protective orders of the nature proposed by 23 defendant, an overwhelming majority have refused to grant any type of protection from 24 dissemination.”]; Wolhar v. General Motors Corp. (Del. 1997) 712 A.2d 464, 467 [“The great 25 weight of authority in other jurisdictions holds that such sharing is not only theoretically sound but 26 also justified as an efficient use of the resources of the courts and the parties.”].) 27 Plaintiffs have no intention whatsoever of exchanging any confidential material to any of 28 MEF’s competitors. MEF is aware of this fact, but consistently argues that by sharing information 11 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 with other attorneys, who are legally bound by the provisions of a protective order (and sign 2 written assurances to that effect), Plaintiffs’ counsel will be disseminating confidential trade 3 secrets to its competitors. This is simply not the case. There is no evidence at all that any 4 plaintiff’s attorneys have ever disseminated MEF’s confidential information to anyone other than 5 another attorney or expert witnesses. 6 Courts have consistently recognized that information exchange between plaintiffs’ counsel 7 is not only authorized, it is also encouraged and can be done without risking the unbridled 8 dissemination of a defendant’s confidential information. Grange Mutual Insurance Co. v. Trude 9 (Ky. 2004) 151 S.W.3d 803, 814 [“That discovery might be useful in other litigation or other 10 proceedings is actually a good thing because it furthers one of the driving forces behind the Civil 11 Rules by allowing the cost of repeating the discovery process to be avoided and thereby 12 encouraging the efficient administration of justice.”] The sharing of information amongst lawyers 13 subject to a protective order also promotes speedy, efficient, and inexpensive litigation by orderly 14 facilitating the dissemination of discovery material. Burlington City Board of Educ. v. United 15 States Mineral Prod Co., Inc. (M.D.N.C. 1987) 115 F.R.D. 188, 190 [Collecting cases and noting, 16 “the sharing of information between even diverse plaintiffs promotes speedy, efficient and 17 inexpensive litigation by facilitating the dissemination of discovery material necessary to analyze 18 one’s case and prepare for trial.”].) 19 This is because sharing protective orders level the playing field between plaintiffs and 20 defendants by lessening the financial burden on injured plaintiffs who are forced to sue large 21 corporations. Burlington City, supra, at 190 [“Permitting plaintiffs to share information helps 22 counterbalance the effect uneven financial resources between parties might otherwise have on the 23 discovery process, thereby protecting economically modest plaintiffs faced with financially well 24 off defendants and improving accessibility to justice.”] By reducing the costs of discovery, sharing 25 protective orders increase plaintiffs’ access to justice and lessen defendants’ incentive to 26 purposefully increase the costs of litigation. 27 The exchange of information between Plaintiffs’ counsel in this action and plaintiffs’ 28 counsel pursuing similar actions against MEF is even more appropriate since Plaintiffs are suing 12 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 MEF and its franchise owners for fraudulent concealment and conspiracy to keep secret the 2 rampant problem of sexual assaults happening within its spas throughout the country, which poses 3 an ongoing risk to women stepping foot inside those spas to this very day. Wolhar, supra, 712 4 A.2d at 467 [“Sharing of discovery materials is particularly appropriate where multiple individual 5 plaintiffs assert essentially the same alleged wrongs against a national manufacturer of a consumer 6 product.”]; Deford v. Schmid Prod. Co. (D.Md. 1987) 120 F.R.D. 648, 654 [“Sharing discovery 7 materials may be particularly appropriate where multiple individual plaintiffs assert essentially the 8 same alleged wrongs against a national manufacturer of a consumer product”]; Ward v. Ford 9 Motor Co. (D. Colo. 1982) 93 F.R.D. 579,580. 10 Plaintiffs anticipate that there are very few documents or categories of documents that will 11 be truly at issue here. In addition, of those documents at issue, there will be even fewer that will 12 involve true contests over discoverability. That is to say, while MEF will no doubt fight over the 13 production of nearly every document at issue here, the discoverability of those same documents 14 has already been adjudged by this Court or others across the country. For example, while MEF may contest the production of documents underlying and/or used to formulate policies, documents 15 related to other assaults by a subject therapist or other assaults at a particular franchise, or 16 customer lists, these issues have already been decided in Plaintiff’s favor during Informal 17 Discovery Conferences by this Court or in other courts with identical counsel in other states. 18 Issues surrounding access to MEF’s full repository of sexual assault complaints and full and 19 complete information regarding their work with the Rape, Abuse, and Incest National Network 20 (“RAINN”) may be the only contested issues not already decided by this or other Courts. 21 Therefore, under these circumstances, the sharing of documents across all cases is a necessity. 22 The amended SPOT sufficiently balances the numerous benefits of sharing discovery 23 amongst plaintiffs’ counsel with MEF’s interests in protecting its allegedly confidential business 24 information. Specifically, before any Plaintiffs counsel in another case is able to obtain relevant 25 documents, he or she must agree to be bound by the terms of amended SPO in this case, and must 26 expressly agree not to disseminate such materials to MEF’s competitors. These are adequate 27 safeguards to protect MEF’s documents should they be disseminated to other counsel. Thus, 28 Plaintiffs ask for an order allowing sharing with a limited class of plaintiffs in case before this Court and other similarly situated plaintiffs, where anyone receiving documents must also agree to 13 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 be bound by the protective order and subject themselves to the Court's jurisdiction for 2 enforcement. A non-sharing protective order will subject Plaintiffs to the unnecessary and 3 unreasonable burden of wading through MEF and other franchise defendants’ "confidential" 4 document productions with no assistance from similarly situated litigants, repetitive motions to 5 compel and depositions, and prevent Plaintiffs from proving their claims. 6 V. CONCLUSION 7 The current Proposed Order provides adequate safeguards against the dissemination of 8 confidential information to MEF’s competitors. Therefore, Plaintiffs respectfully request this 9 Court enter a protective order consistent with the terms set out in Exhibit A. 10 11 Dated: February 26, 2021 THOMPSON LAW OFFICES, P.C. 12 13 By: _______________________ ROBERT THOMPSON 14 Attorneys for Plaintiffs 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER 1 DECLARATION OF ROBERT W. THOMPSON 2 I, Robert W. Thompson, declare, 3 1. I am an attorney duly licensed to practice law before all courts in the State of 4 California. I am the founding partner of Thompson Law Offices, P.C., counsel of record for 5 Plaintiffs in this action. I make this declaration based on my personal knowledge, and, if required 6 to do so, I can testify competently as to the matters contained below. 7 2. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs’ proposed 8 Amended Stipulated Protective Order. 9 3. Attached hereto as Exhibit B is a true and correct copy of relevant portions of co- 10 defendant Eastlake Village, LLC’s Response to Plaintiffs’ Request for Production of Documents. 11 I declare under penalty of perjury under the laws of State of California that the foregoing is 12 true and correct and this declaration was executed on the 26th day of February 2021 in 13 Burlingame, California. 14 15 By:_______________________________ 16 Robert W. Thompson, Esq. 17 Attorney for Plaintiffs 18 19 20 21 22 23 24 25 26 27 28 15 _______________________________________________________________________________________________ PLAINTIFFS’ MOTION FOR AMENDED PROTECTIVE ORDER EXHIBIT A 1 Luanne Sacks (SBN 120811) Robert W. Thompson (SBN 250038) Michele Floyd (SBN 163031) Kristen A. Vierhaus (SBN 322778) 2 Robert B. Bader (SBN 233165) THOMPSON LAW OFFICES, P.C. Jacqueline Young (SBN 280374) 700 Airport Blvd., Suite 160 3 SACKS, RICKETTS & CASE, LLP Burlingame, CA 94010 177 Post Street, Suite 650 Tel: (650) 513-6111 4 San Francisco, CA 94108 Fax: (650) 513-6071 Phone: 415.549.0580 5 Fax: 415.549.0640 Elise R. Sanguinetti (SBN 191389) Jamie G. Goldstein (SBN 302479) 6 Robert Atkins (admitted pro hac vice) ARIAS, SANGUINETTI, WANG & Jacqueline P. Rubin (admitted pro hac vice) TORRIJOS, LLP 7 PAUL, WEISS, RIFKIND, WHARTON & 2200 Powell Street, Suite 740 GARRISON LLP Emeryville, CA 94608 8 1285 Avenue of the Americas Tel: (510) 629-4877 New York, NY 10019 Fax: (510) 491-9742 9 Phone: 212.373.3056 Fax: 212.492.0056 Brian D. Kent 10 V. Paul Bucci, II (admitted pro hac vice) Attorneys for Defendant M. Stewart Ryan (admitted pro hac vice) 11 Massage Envy Franchising, LLC LAFFEY, BUCCI & KENT, LLP 1100 Ludlow Street, Suite 300 12 Philadelphia, PA 19107 Tel: (215) 399-9255 13 Fax: (215) 241-8700 14 Attorneys for Plaintiffs 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 COUNTY OF SAN MATEO 17 UNLIMITED CIVIL JURISDICTION 18 JANE DOE #1 (N.K.); ASSIGNED FOR ALL PURPOSES TO 19 DEPARTMENT 2 Plaintiff, 20 v. Case No. 18CIV03706 [AND ALL 21 MASSAGE ENVY FRANCHISING, LLC; ME RELATED CASES] TIME, INC.; ANGELINE SEBASTIAN- 22 STAFFORD; and DOES 1-400, inclusive; AMENDED STIPULATED PROTECTIVE ORDER REGARDING 23 Defendants. CONFIDENTIAL INFORMATION 24 25 26 27 28 AMENDED STIPULATED PROTECTIVE ORDER CASE NO. 18CIV03706 [AND ALL RELATED CASES] 1 In order to protect Confidential Information obtained by the parties in connection with 2 this case, 18CIV03706 (“Action”), the parties, by and through their respective undersigned 3 counsel and subject to the approval of the Court, hereby agree as follows in this Stipulated 4 Protective Order (“Order”): 5 Part One: Use Of Confidential Materials In Discovery 6 1. Any party or non-party may designate as “Confidential” (by stamping the relevant 7 page or as otherwise set forth herein) any document that such party or non-party produces or 8 any response to written discovery or subpoena that such party or non-party provides which that 9 party or non-party considers in good faith to contain Confidential Information. “Confidential 10 Information” is defined and will be determined by applicable California law pertaining to 11 same. Where a document or response to written discovery or subpoena consists of more than 12 one page, the first page and each page on which Confidential Information appears shall be so 13 designated. Where a document is produced in native or other electronic form or an electronic 14 copy of a paper document is produced, the document shall be designated as confidential by 15 including the term “Confidential” in the file name of the document. For any other tangible 16 items, including, without limitation, compact discs or DVDs, the designating party must affix 17 in a prominent place on the exterior of the container or containers in which the Confidential 18 Information is stored the legend “Confidential.” If a party produces materials designated 19 Confidential in compliance with this Order, that production shall be deemed to have been 20 made consistent with any confidentiality or privacy requirements mandated by local, state or 21 federal laws. 22 2. Any party may designate as “Confidential” documents or responses to written 23 discovery produced by another party or non-party which the non-producing party considers in 24 good faith to contain Confidential Information. Such designation must be made in writing to 25 the other parties, and any non-party that produced the Confidential Information (if applicable), 26 within thirty (30) days of receipt of the document or written response and shall identify the 27 relevant Bates numbers or other identification along with the legal basis for such designation. 28 Any other party may object to such designation by following the procedures described in -1- AMENDED STIPULATED PROTECTIVE ORDER CASE NO. 18CIV03706 1 Paragraph 10 below. The designated documents or responses to written discovery shall be 2 treated in accordance with the “Confidential” designation until the matter is resolved pursuant 3 to the procedures described in Paragraph 10 below. 4 3. A party or non-party may designate information or documents disclosed during a 5 deposition as “Confidential” by so indicating on the record at the deposition and requesting the 6 preparation of a separate transcript of such material. In the alternative, a party or non-party 7 may designate in writing, within thirty (30) days after receipt of the deposition transcript from 8 the court reporter for which the designation is proposed, that specific pages and lines of the 9 transcript or documents be treated as “Confidential,” along with a legal basis for the 10 designation. For purposes of this provision, receipt of a transcript in “rough” format shall not 11 initiate the designation accrual period. Any other party may object to such designation, in 12 writing or on the record. Upon such objection, the parties shall follow the procedures described 13 in Paragraph 10 below. After any designation made according to the procedure set forth in this 14 paragraph, the designated documents or information shall be treated as “Confidential” in 15 accordance with the designation until the matter is resolved according to the procedures 16 described in Paragraph 10 below. A party that makes original documents or materials available 17 for inspection need not designate them as “Confidential” until after the inspecting party has 18 indicated which materials it would like copied and produced. During the inspection and before 19 the designation and copying, all of the material made available for inspection shall be 20 considered “Confidential” if a party so designates them as “Confidential” during the 21 inspection. 22 4. All Confidential Information produced or exchanged in the course of this Action 23 (not including information that is publicly available) shall be used by the party or parties to 24 whom the information is produced solely for the purpose of this Action and/or any action in 25 which Confidential information is shared with counsel in similar litigation, subject to the 26 requirements set forth in paragraph 5 below. Documents, materials, or testimony marked 27 “Confidential” shall not be used for any commercial, competitive, personal, or other purpose. 28 5. Confidential Information may be shared with and used by attorneys and parties in -2-