Nikola Lovig v. Sears Roebuck & Co et al
Filing
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PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order 39 . (See Order for details). (wr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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NIKOLA LOVIG, on behalf of himself
and all others similarly situated,
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Plaintiff,
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v.
SEARS, ROEBUCK & CO., a New
York Corporation; and DOES 1-50,
inclusive,
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[PROPOSED] PROTECTIVE
ORDER RE USE OF PRIVATE
AND CONFIDENTIAL
INFORMATION
CLASS ACTION
Defendants.
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Case No. EDCV11-756 CJC (RNBx)
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ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
SILICON VALLEY
OHS WEST:261306085.1
[PROPOSED] PROTECTIVE ORDER RE USE OF
PRIVATE AND CONFIDENTIAL INFORMATION
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Plaintiff Nikola Lovig and Defendant Sears, Roebuck and Co. (collectively
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“Stipulating Parties”), through their respective counsel of record, acknowledge and
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agree that the prosecution and defense of this action is likely to require the
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exchange of Confidential Information (as that term is defined below) the public
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disclosure of which would cause irreparable harm to the Stipulating Parties,
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including but not limited to former and current employees’ personnel data,
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compensation information, and proprietary Sears, Roebuck and Co. information.
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The Stipulating Parties also agree that public disclosure of Confidential Information
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may violate former and current employees’ right of privacy by disclosing their
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private personnel and financial data. In addition, public disclosure of Confidential
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Information may also cause financial harm and injury to Sears, Roebuck and Co.’s
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ability to compete in the marketplace by disclosing trade secret, proprietary and
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commercial information that is not otherwise available to the public. Sears,
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Roebuck and Co. treats its Confidential Information in a confidential manner and
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has policies in place to limit the disclosure of this information.
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As such, good cause appearing, the Court hereby approves and enters this
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Protective Order relating to the use of private and confidential information,
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stipulated, consented to and agreed by the Stipulating parties through their
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respective counsel of record:
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1.
That the preparation of this action may require the discovery or
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disclosure of documents, information or other material claimed by one or more of
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the parties to this action or others to be confidential.
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2.
In order to expedite the flow of discovery materials, facilitate the
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prompt resolution of disputes over confidentiality, adequately protect material
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entitled to be kept confidential, and serve the ends of justice, a protective order for
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such information is prudent and necessary.
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3.
Any Stipulating Party may designate as “Confidential” any documents
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OHS WEST:261306085.1
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[PROPOSED] PROTECTIVE ORDER RE USE OF
PRIVATE AND CONFIDENTIAL INFORMATION
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or other information that contains “Confidential Information,” as that term is
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defined in Paragraph 4 below, that a Stipulating Party has kept secret or
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confidential, or information which, if disclosed, could place a Stipulating Party at a
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competitive disadvantage in the marketplace or cause disclosure of private
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information. Documents, depositions, and interrogatory responses or other papers
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or electronic data shall be designated confidential by stamping the word
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“Confidential” on each page of the document containing confidential information or
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by a Stipulating Party advising the other Stipulating Party in writing that such
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documents or data are deemed to be confidential. “Confidential Information”
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includes documents or information that has not been made public or that a party in
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good faith believes, if disclosed will cause harm to its competitive position.
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4.
“Confidential Information” includes documents or other information
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relating to trade secrets, proprietary or other confidential commercial information
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that belongs to Sears, Roebuck and Co. (“Sears”), including but not limited to the
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following specific categories of documents: (1) documents that reveal confidential
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employee information such as name, address, telephone number, demographic or
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other personal information; (2) documents that reveals personal information
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regarding Sears’ customers; (3) and documents that reveal confidential financial or
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commercial information regarding Sears’ business that is not available to the public
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or Sears’ competitors. “Confidential Information” also includes private and
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confidential documents or information relating to Plaintiff Nikola Lovig or past and
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present employees of Sears, including but not limited to private personnel or
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financial information. Execution of this protective order shall not waive any right
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otherwise available to the Stipulating Parties to object to the production of any such
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requested information on privacy, attorney-client privilege, attorney work product,
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relevancy or other grounds when the parties deem such an objection to be necessary
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or appropriate.
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OHS WEST:261306085.1
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[PROPOSED] PROTECTIVE ORDER RE USE OF
PRIVATE AND CONFIDENTIAL INFORMATION
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5.
Neither the provisions of this Stipulated Protective Order, nor any
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designation or failure to designate any particular information, document or material
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by a party as Confidential Information shall, in this litigation or any other litigation,
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constitute a waiver of the rights of a party to assert confidentiality with respect to
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any document, material or information meeting the definition of Confidential
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Information in Paragraph 4 above. Upon discovery of an inadvertent or otherwise
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non-designation, the discovering party will immediately notify the opposing party
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and the information, document or material identified will be treated as if it had been
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originally designated as Confidential Information and will be subject to the terms of
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this Stipulated Protective Order.
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All Confidential Information provided by the parties pursuant to
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discovery or otherwise obtained in the course of this litigation shall be treated as
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confidential and shall not be disseminated to any person not directly connected with
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this specific litigation. Specifically, all Confidential Information listed in
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Paragraph 4 that is obtained through discovery or otherwise from the parties in this
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case shall not be disclosed to anyone other than:
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(a)
retained and corporate attorneys for any Stipulating Party who are
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engaged in litigating this action and the employees, photocopy service providers,
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and couriers of such attorneys;
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(b)
persons not employees of any Stipulating Party who serve as experts or
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consultants (“outside experts”) to assist such Stipulating Party’s counsel in the
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prosecution or defense of this action, including, but not limited to statisticians,
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economists, attorneys and other experts, and the employees of such persons;
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(c)
a Stipulating Party, or principals, officers, employees, agents or
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representatives of any Stipulating Party whose assistance or consultation is required
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by counsel in connection with the prosecution or defense of this action;
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(d)
witnesses in any deposition or testimonial court proceeding in this
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OHS WEST:261306085.1
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[PROPOSED] PROTECTIVE ORDER RE USE OF
PRIVATE AND CONFIDENTIAL INFORMATION
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litigation if the witness produced or otherwise has knowledge of the material in the
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documents and only for the purpose of the prosecution or defense of this litigation;
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or
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(e) the Court and mediators, and the personnel of any of the foregoing.
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7.
No person shall make any disclosure of Confidential Information to
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any person falling within categories (b) or (d) in Paragraph 6 without first obtaining
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from any such person a signed statement in the form attached hereto as Exhibit “A.”
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Either party may request of the other, a copy (if any) of said signed statement(s) to
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counsel. Subject to applicable privileges, the other party must promptly comply
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with such a request by providing copies of the signed statement(s) by telecopier or
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other appropriate means, and in no event beyond five (5) court days of such a
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request. If a party objects to the disclosure of information to a particular person, the
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Stipulating Party objecting to such disclosure shall have five days to both hold a
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pre-filing conference as provided in Local Rule 37-1 and submit to the opposing
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party a joint stipulation for a protective order from the Court barring such
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disclosure and no such disclosure shall be made until further order of the Court.
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8.
No disclosure of Confidential Information shall be made except in
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accordance with this Stipulation and Protective Order, and no use shall be made of
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any Confidential Information except in accordance with this Stipulation and
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Protective Order.
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9.
This order shall in no way impair the right of any party to raise or
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assert a defense or objection, including but not limited to defenses or objections to
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the production of documents or information and to the use, relevancy or
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admissibility at the trial of this litigation of any evidence, whether or not comprised
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of documents or information governed by this order.
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10.
All attempts to use any Confidential Material in connection with any
pleading, motion or as evidence shall be governed by the procedures set forth in
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OHS WEST:261306085.1
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[PROPOSED] PROTECTIVE ORDER RE USE OF
PRIVATE AND CONFIDENTIAL INFORMATION
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Local Civil Rule 79-5. If any Stipulating Party intends to file or lodge with the
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Court for any purpose any portion of any document, answer to interrogatory or
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request for admission, or deposition transcript identified as containing information
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that has been designated as Confidential Information by another Stipulating Party,
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or any pleading, motion, brief, or declaration containing or disclosing information
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that has been designated as Confidential Information by another Stipulating Party, it
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will first provide the Designating Party no less than five court days’ notice of such
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intent. This notice will clearly identify, by Bates-stamp number or other detailed
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description, the specific documents that are to be filed/lodged with the Court. This
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minimum five-day notice period will enable the Designating Party an opportunity
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to serve on the Stipulating Party that intends to file or lodge the Confidential
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Information a written application and proposed order requesting that the pleading,
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motion or evidence (or portion thereof) containing Confidential Information be
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filed under seal, pursuant to Local Rule 79-5.1. The application must show good
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cause for filing under seal. The Stipulating Party that lodges or files potentially
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affected documents shall then present to the judge to whom the affected papers are
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directed, along with the potentially affected documents, the Designating Party’s
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application and proposed order, pursuant to Local Rule 79-5.1. The Stipulating
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Party that lodges or files potentially affected documents with the Court also will file
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or lodge them in an envelope or container marked “CONDITIONALLY UNDER
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SEAL” pending the Court’s ruling on the Designating Party's application. The
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Court’s refusal to order certain documents sealed does not impact or abrogate any
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party’s designation of those documents as Confidential Information.
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Nothing in this order shall preclude any party from using Confidential
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Information at the trial of this litigation; provided, however, that prior to using such
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material the party offering it advises the Court and all other parties so that steps can
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be taken to ensure the preservation of the confidential nature of the information to
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OHS WEST:261306085.1
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[PROPOSED] PROTECTIVE ORDER RE USE OF
PRIVATE AND CONFIDENTIAL INFORMATION
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be used, if deemed necessary and appropriate by the Court.
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Should any Stipulating Party object to the Confidential treatment of
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any information designated Confidential under the terms hereof, such Stipulating
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Party shall, after meeting and conferring in good faith with the designating party as
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required by Local Rule 37-1, move the Court consistent with the requirements of
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Local Rule 37-1 for an order releasing the material from the designation as
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Confidential.
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13.
Notwithstanding the foregoing provisions, any stipulating Party shall
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have the right to redact from all documents produced in discovery any of the
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following in accordance with Fed. R. Civ. P. 5.2: Social Security or taxpayer-
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identification numbers; day and month of birth dates; names of minor children; all
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but the last four digits of financial account numbers. If the Parties have a dispute
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about the redaction of information, it shall be resolved in accordance with the
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provisions of Paragraph 12.
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14.
Any Stipulating Party shall have the right to “claw back” (i.e., have
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returned) from the receiving Party all documents produced which contain
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information protected by the attorney-client privilege, attorney work product
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doctrine, and any other applicable privilege or immunity. The Stipulating Party
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must exercise its rights under this Paragraph by providing a written notice to the
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receiving Party that it is invoking its right to claw back such documents and
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identifying the documents to be returned. Upon receipt of such notice, the
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receiving Party shall immediately cease any use, whatsoever, of such documents. If
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the receiving Party challenges the designation of such documents as not being
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subject to the attorney-client privilege, attorney work product doctrine, and any
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other applicable privilege or immunity claimed by the designating Party, the parties
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shall resolve their dispute in accordance with Paragraph 12, and the documents may
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be reviewed by the Court, in camera, for inspection.
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OHS WEST:261306085.1
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[PROPOSED] PROTECTIVE ORDER RE USE OF
PRIVATE AND CONFIDENTIAL INFORMATION
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15.
Nothing contained herein shall restrict in any way the rights of any
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Stipulating Party producing Confidential Information to release that information or
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otherwise make it non-Confidential.
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All Confidential Information, including but not limited to documents
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produced by Plaintiff or Sears, Roebuck and Co. that relate to Sears, Roebuck and
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Co.’s trade secrets, proprietary or other confidential information, that belongs to
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Sears, Roebuck and Co. shall remain the property of Sears, Roebuck and Co.,
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together with all copies thereof, and shall be returned to counsel for Sears, Roebuck
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and Co. at the conclusion of the litigation. Notes, summaries and other documents
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protected by the work product doctrine shall remain subject to this Stipulation and
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Protective Order.
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Nothing in this Order shall be construed as authorizing a party to
disobey a lawful subpoena issued in another action.
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This Stipulation and Protective Order shall not limit the right of any
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party to apply for further protective orders as modifications or extensions of this
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order, subject to Court approval, and shall not restrict the use by any party of its
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own information.
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Once protections in this Stipulation and Protective Order have attached
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to a document, statement or item of information hereafter communicated, such
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protections shall not be reduced or waived by further communicating, restating,
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summarizing, discussing or referring to any such documents, statements or
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information.
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IT IS SO ORDERED:
Dated:
September 12, 2011
Honorable Robert N. Block
United States Magistrate Judge
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OHS WEST:261306085.1
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[PROPOSED] PROTECTIVE ORDER RE USE OF
PRIVATE AND CONFIDENTIAL INFORMATION
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EXHIBIT A
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CERTIFICATION
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I _________________________________________, hereby state and
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declare that I have read and understand the attached Protective Order re Private and
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Confidential Information (the “Protective Order”) in the matter of
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_____________________________________, United States District Court, Central
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District of California Case No. EDCV11-756 CJC (RNBx), and hereby agree to
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fully comply with the terms and conditions thereof. I hereby submit to the
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jurisdiction of the United States District Court for the Central District of California
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for the purpose of enforcing the Protective Order.
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Executed this ___ day of ______________ 20___, at
________________________.
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_________________________________________
(Signature)
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OHS WEST:261306085.1
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[PROPOSED] PROTECTIVE ORDER RE USE OF
PRIVATE AND CONFIDENTIAL INFORMATION
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