Coughlin v. Sears Holdings Corporation et al

Filing 35

STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION by Magistrate Judge Robert N. Block GRANTED. (see document for further details) (klg)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LYNNE C. HERMLE (State Bar No. 99779) JOSEPH C. LIBURT (State Bar No. 155507) CHRISTIAN N. BROWN (State Bar No. 233147) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: (650) 614-7400 Fax: (650) 614-7401 Attorneys for Defendants SEARS HOLDINGS CORPORATION and SEARS, ROEBUCK AND CO. LOUIS M. MARLIN (State Bar No. 54053) STANLEY D. SALTZMAN (State Bar No. 90058) MARLIN & SALTZMAN 3200 El Camino Real, Suite 100 Irvine, CA 92602 Telephone: (714) 669-4900 Fax: (714) 669-4750 MARCUS J. BRADLEY SCHWARTZ, DANIELS AND BRADLEY 29229 Canwood Street, Suite 208 Agoura Hills, CA 91301 Telephone: (310) 478-5838 Fax: (310) 478-1232 PETER M. HART LAW OFFICES OF PETER M. HART 13952 Bora Bora Way, F-320 Marina Del Rey, CA 90292 Telephone: (310) 478-5789 Fax: (310) 561-6441 Attorneys for Plaintiff TRACY COUGHLIN and PROPOSED CLASS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TRACY COUGHLIN, as an individual and on behalf of all others similarly situated, Plaintiff, v. SEARS HOLDINGS CORPORATION, a corporation; SEARS, ROEBUCK AND CO., a corporation, Defendants. OHS West:260475102.1 STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) Case No. SACV 08-00015 CJC (RNBx) STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Federal Rule of Civil Procedure 26(c), it is hereby stipulated and agreed by and between the parties that the terms and conditions of this stipulated protective order shall govern the handling of documents, answers to interrogatories, depositions, pleadings, exhibits, and all other information exchanged between the parties in this action that contains confidential, commercial, financial, competitive, proprietary and/or personal information. The parties hereby submit the following stipulation and move the Court to approve the Stipulation as a Protective Order. STIPULATION This case is a purported class action alleging that Defendants caused accrued and unused vacation time to be forfeited by their employees, and that Defendants improperly denied compensation for such forfeited vacation time in violation of California law. The parties anticipate that, given the nature of this case, certain documents, things and information disclosed may constitute or contain trade secrets, or other proprietary, private, or confidential information. This information may include, but is not limited to, (i) private personnel data of current and former employees, (ii) compensation information, (iii) employee training materials, (iv) confidential and proprietary business policies and procedures, and (v) confidential agreements and/or documents related to the corporate structure of the Defendants. Defendants consider such information confidential and proprietary, take reasonable steps to protect the confidential nature of this information, and the public disclosure of such information could place Defendants at a competitive disadvantage. Thus, subject to and without waiving any objections any party may have as to the discoverability of any information, and without waiving any objections or legal claims any party may have (including but not limited to any objections or legal claims arising out of the acquisition, retention, or other handling of documents containing confidential or proprietary information), and solely for the purpose of providing procedures for the handling and protection of "Confidential OHS West:260475102.1 STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Information" and "Highly Confidential Information" as defined herein, the parties to this action hereby agree on the following procedures for handling such Confidential Information and Highly Confidential Information. The parties hereby agree that access to and use of such documents, things and information shall be governed and limited by the provisions of this Protective Order as set forth herein, subject to the approval of the Court. A. DEFINITION OF CONFIDENTIAL INFORMATION 1. "Confidential Information," as used herein, means any type or classification of information, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, or otherwise, which (i) is designated when it is produced as "Confidential" by the supplying party, or (ii) which is designated by a receiving party as "Confidential" by stating in writing the specific pages of the information to be so designated, within twenty (20) business days after receipt of the information for which the designation is proposed. In designating information as Confidential Information, the party so designating will make such designation only as to that information which it believes contains secret, confidential, private, and/or proprietary information and must be protected against disclosure to non-parties. Each party shall exercise good faith in designating information as Confidential Information. 2. "Highly Confidential Information" as used herein, means any type or classification of information, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, or otherwise, which (i) is designated when it is produced as "Highly Confidential Information" by the supplying party, or (ii) which is designated by a receiving party as "Highly Confidential Information" by stating in writing the specific pages of the information to be so designated, within twenty (20) business days after receipt of the information for which the designation OHS West:260475102.1 STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is proposed. In designating information as Highly Confidential Information, the party so designating will make such designation only as to that information which it believes contains confidential and private compensation and/or performance data of putative class members and must be protected against disclosure to non-parties or to individuals other than to those to whom the confidential and private compensation and/or performance data relates. Each party shall exercise good faith in designating information as Highly Confidential Information. B. PROCEDURE FOR DESIGNATING MATERIAL AS CONFIDENTIAL INFORMATION OR HIGHLY CONFIDENTIAL INFORMATION 1. Confidential Information or Highly Confidential Information shall include all documents provided by a party which have been designated as confidential by marking the page: "CONFIDENTIAL INFORMATION" or "HIGHLY CONFIDENTIAL INFORMATION." In lieu of marking the original of documents, the party may mark the copies that are produced or exchanged. 2. The identification of information as Confidential Information or Highly Confidential Information by a supplying party shall be made at a time when an answer to an interrogatory or an answer to a request for admission is served, when a copy of a document is provided to the other party, and when an inspection of premises or tangible things is made. 3. The identification of information as Confidential Information or Highly Confidential Information by a receiving party shall be made in writing within twenty (20) business days of such receipt by stating in writing which specific pages are to be marked Confidential Information or Highly Confidential Information. No Confidential Information or Highly Confidential Information may be read by anyone other than the individuals identified in section C1 or C2 below, during said twenty (20) business day period. Every party shall in such cases mark every page so identified in his or her possession, custody or control with an OHS West:260475102.1 -4- STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 appropriate marking identifying the information as Confidential Information or Highly Confidential Information. 4. Information disclosed at a deposition may be designated as confidential by either (a) indicating on the record at the deposition that the testimony is Confidential Information or Highly Confidential Information and subject to the provisions of this Order or (b) by notifying the opposing party in writing within twenty (20) business days of the receipt of the transcript of those pages and lines or exhibits that contain Confidential Information or Highly Confidential Information. No Confidential Information or Highly Confidential Information may be read by anyone other than attorneys for the named parties and their employees, experts and consultants, and the deponent during said twenty (20) business day period. Upon being informed that certain portions of a deposition disclose Confidential Information or Highly Confidential Information, each party must cause each copy in their possession, custody or control to be so marked immediately. 5. If any party believes that a document or other information, which has been designated as Confidential Information or Highly Confidential Information, should not properly be treated so designated within this protective order, that party will notify the disclosing party of its disagreement with the confidential designation. Counsel for the parties will then endeavor to reach an agreement regarding the status of that document or information. If no agreement can be reached, the party seeking to challenge the designation of the document shall file a motion for relief. Until the Court resolves the motion, the document will be treated as designated subject to the terms of this protective order. The provisions of this paragraph provide procedures in addition to, not in lieu of, compliance with Central District Local Rule 37. OHS West:260475102.1 -5- STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. QUALIFIED PERSONS WITH ACCESS TO CONFIDENTIAL INFORMATION 1. Information or material designated as "Confidential Information," or copies or extracts therefrom and compilations and summaries thereof, may be disclosed, summarized, described, characterized, or otherwise communicated or made available in whole or in part only to the following Qualified Persons: (a) outside counsel of parties in this action and their related entities and regular and temporary employees of such counsel to whom it is necessary that the information or material be shown for the purposes of this litigation; (b) Section D herein; (c) Consultants and experts retained or employed to assist the attorneys of named parties in the preparation of this litigation for trial, such as statisticians, economists, accountants, or other technical or legal experts or consultants, subject to and in compliance with Section D herein. (d) (e) this action; (f) graphics or design services retained by counsel for a party for the sole purposes of preparing demonstrative or other exhibits for deposition, trial, or other court proceedings in this action, subject to and conditioned upon compliance with Section D herein; (g) herein; and (h) OHS West:260475102.1 parties and employees of the parties whose assistance to counsel is necessary for the purposes of this litigation, subject to and in compliance with the Court; court reporters and videographers employed in connection with non-technical jury or trial consulting services retained by counsel for a party, subject to and conditioned upon compliance with Section D any other person only upon order of the Court or upon prior -6STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 written consent of the party who designated the information or material confidential, subject to and conditioned upon compliance with Section D herein. 2. Information or material designated as "Highly Confidential Information" or copies or extracts therefrom and compilations and summaries thereof, may be disclosed, summarized, described, characterized, or otherwise communicated or made available in whole or in part only to the following Qualified Persons: (a) outside counsel of parties in this action and their related entities and regular and temporary employees of such counsel to whom it is necessary that the information or material be shown for the purposes of this litigation, and defendant's in-house counsel; (b) Consultants and experts retained or employed to assist the attorneys of named parties in the preparation of this litigation for trial, such as statisticians, economists, accountants, or other technical or legal experts or consultants, subject to and in compliance with Section D herein; (c) (d) this action; (e) graphics or design services retained by counsel for a party for purposes of preparing demonstrative or other exhibits for deposition, trial, or other court proceedings in this action, subject to and conditioned upon compliance with Section D herein; (f) herein; (g) to the extent the Highly Confidential Information is an individual plaintiff's or putative class member's own private compensation or performance data, he or she may also have access to such information, subject to and conditioned upon OHS West:260475102.1 STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) the Court; court reporters and videographers employed in connection with non-technical jury or trial consulting services retained by counsel for a party, subject to and conditioned upon compliance with Section D -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 compliance with Section D herein; (h) any other person only upon order of the Court or upon written consent of the party who designated the information or material confidential, subject to and conditioned upon compliance with Section D herein. All persons listed in Section C1(b), (c), (f), (g) and (h) and in Section C2(b), (e), (f), (g) and (h) above may be given access to information or material designated as "Confidential Information" or "Highly Confidential Information" provided that they first confirm their understanding and agreement to abide by the terms of this Protective Order by completing and signing a copy of an undertaking in the form attached hereto as Exhibit A. 3. Any person may be examined as a witness during a deposition concerning any information or material designated as "Confidential Information" or "Highly Confidential Information" to which that person had lawfully received or authored prior to and apart from this action. During examination, any such witness may be shown information or material designated as "Confidential Information" or "Highly Confidential Information" by a party which appears on its face or from other documents or testimony to have been received or authored by that witness from, or communicated to that witness by, that same party or otherwise appears on its face to contain information about which it appears reasonably likely that the witness has discoverable information, provided that the examining party obtains the witness' compliance with Section D. D. RESTRICTIONS ON THE USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION 1. Any information designated as Confidential Information shall not be made available or disclosed to any person other than the Qualified Persons identified in Section C. Persons who, by virtue of the conduct of this litigation, have knowledge of the designated Confidential Information or Highly Confidential Information shall not suffer or permit its disclosure or that of any information OHS West:260475102.1 STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 obtained, derived, compiled, or ascertained therefrom, to any person or persons not entitled under this Protective Order to receive such information. 2. Disclosure of all items designated as Confidential Information or Highly Confidential Information in this action shall be solely for the purposes of this action, (i.e., Coughlin v. Sears Holdings Corp. et al., United States District Court, Central District of California, No. SACV 08-00015 CJC (RNBx)) unless and until such designation is removed either by stipulation by attorneys for the named parties or by order of the Court. 3. With respect to information designated as Confidential Information or Highly Confidential Information, no copies of documents, testimony, or other information shall be received, kept, or maintained by individuals other than the Qualified Persons as defined above. 4. Any party wishing to file under seal any document or other item designated "CONFIDENTIAL INFORMATION" or "HIGHLY CONFIDENTIAL INFORMATION" shall present the document to the Court, along with a written application and a proposed order pursuant to Civil Local Rule 79-5.1. The documents shall be submitted in an appropriate envelope labeled with the case name and number and the title of the documents. All envelopes containing any Confidential Information or Highly Confidential Information which are submitted to the Court shall carry the following notation on the cover: CONFIDENTIAL - THIS DOCUMENT IS SUBJECT TO A PROTECTIVE ORDER ISSUED BY THE COURT AND MAY NOT BE EXAMINED OR COPIED EXCEPT IN COMPLIANCE WITH THAT ORDER. When applying to file any document under seal, or lodging a document under seal, the moving party shall also file a public version of the document with a redaction of the confidential material. 5. In the event an attorney to this litigation seeks to show any documents or other information denominated as Confidential Information or Highly Confidential Information to anyone other than a Qualified Person, that attorney OHS West:260475102.1 STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 shall first advise opposing counsel at least five (5) days in advance, and seek to reach an informal resolution of such matters. In the event that agreement cannot be reached, the party seeking to show the Confidential Information or Highly Confidential Information shall apply to the Court for relief from this Protective Order. The provisions of this paragraph provide procedures in addition to, not in lieu of, compliance with Central District Local Rule 37. E. NON-APPLICABILITY TO THE TRIAL OF THIS ACTION The terms of this Order shall continue to apply during the time period in which the trial of this action occurs, but shall not apply to the trial itself, as all decisions concerning the conduct of the trial shall be made by the trial judge. Any party may, at or before the time of trial, seek an order of the Court to restrict access to particular documents or testimony in the trial. F. NO ADMISSION OR WAIVERS The execution of this Order shall not: 1. constitute a waiver of any party's right to seek from the Court at a future time an order which provides greater, lesser or no restriction of access to Confidential or Highly Confidential documents or information; or 2. be construed as an admission or agreement that any document or information designated as Confidential or Highly Confidential is, in fact, confidential or otherwise entitled to any protective relief whatsoever. G. INADVERTENT DISCLOSURE Any inadvertent production of documents containing privileged information shall not be deemed a waiver of the attorney-client privilege, work product doctrine, or any other applicable privilege or doctrines protecting against disclosure of confidential information or other third party private information. All parties specifically reserve the right to demand the return of any and all privileged documents that it may produce inadvertently during discovery if the producing party determines that such documents contain privileged information. After OHS West:260475102.1 STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 receiving notice of such inadvertent production by the producing party, the receiving party agrees to make reasonable and good faith efforts to immediately locate and return to the producing party all such inadvertently produced documents. Additionally, the receiving party agrees to identify all unqualified persons having received all such inadvertently produced documents. Additionally, the receiving party agrees to identify all unqualified persons having received such inadvertently produced documents. H. RETURN OF DOCUMENTS 1. Unless a party requests that any documents containing such Confidential Information or Highly Confidential Information (including any copies thereof) be returned to that party, the parties shall destroy any such documents produced to it by the other party within sixty (60) days of final termination of this litigation. Nothing in this paragraph would require a party to destroy its own documents. 2. In addition, within sixty (60) days of final termination of this litigation, either party may file a motion requesting that any attorney work product documents which incorporate or reference particular Confidential Information or Highly Confidential Information pursuant to this Protective Order be: (1) destroyed; (2) redacted to delete all references to the Confidential Information or Highly Confidential Information; and/or (3) sealed for a specified period of time and subsequently destroyed. The other party shall have the right to oppose that motion, any other provision of this Stipulation and Protective Order notwithstanding. The Court shall retain jurisdiction after termination of this action to hear any such motion and to enforce any order or ruling issued in connection with such a motion. OHS West:260475102.1 - 11 - STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: , 2008 LYNNE C. HERMLE JOSEPH C. LIBURT CHRISTIAN N. BROWN KATINA M. MINER ORRICK, HERRINGTON & SUTCLIFFE LLP Christian N. Brown Attorneys for Defendants Dated: , 2008 LOUIS M. MARLIN STANLEY D. SALTZMAN MARLIN & SALTZMAN Louis M. Marlin Attorneys for Plaintiff and Proposed Class Dated: , 2008 ARNOLD W. SCHWARTZ MARCUS J. BRADLEY SCHWARTZ, DANIELS, & BRADLEY Marcus J. Bradley Attorneys for Plaintiff and Proposed Class Dated: , 2008 PETER M. HART LAW OFFICES OF PETER M. HART Peter M. Hart Attorneys for Plaintiff and Proposed Class ORDER IT IS SO ORDERED. Dated: November 17, 2008 _______________________________ Honorable Robert N. Block United States Magistrate Judge - 12 STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) OHS West:260475102.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. EXHIBIT A LYNNE C. HERMLE (State Bar No. 99779) JOSEPH C. LIBURT (State Bar No. 155507) CHRISTIAN N. BROWN (State Bar No. 233147) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: (650) 614-7400 Fax: (650) 614-7401 Attorneys for Defendants SEARS HOLDINGS CORPORATION and SEARS, ROEBUCK AND CO. LOUIS M. MARLIN (State Bar No. 54053) STANLEY D. SALTZMAN (State Bar No. 90058) MARLIN & SALTZMAN 3200 El Camino Real, Suite 100 Irvine, CA 92602 Telephone: (714) 669-4900 Fax: (714) 669-4750 MARCUS J. BRADLEY SCHWARTZ, DANIELS AND BRADLEY 29229 Canwood Street, Suite 208 Agoura Hills, CA 91301 Telephone: (310) 478-5838 Fax: (310) 478-1232 PETER M. HART LAW OFFICES OF PETER M. HART 13952 Bora Bora Way, F-320 Marina Del Rey, CA 90292 Telephone: (310) 478-5789 Fax: (310) 561-6441 Attorneys for Plaintiff TRACY COUGHLIN and PROPOSED CLASS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TRACY COUGHLIN, as an individual and on behalf of all others similarly situated, Plaintiff, SEARS HOLDINGS CORPORATION, a corporation; SEARS, ROEBUCK AND CO., a corporation, Defendants. OHS West:260475102.1 Case No. SACV08-00015 CJC (RNBx) STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION 1 STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Name: Affiliation: I hereby certify that I have carefully read the Stipulation and Protective Order Re Use of Confidential Documents and Information in the above-captioned case, and that I fully understand the terms of the Court's Order. I recognize that I am bound by the terms of that Order, and I agree to comply with those terms. I hereby consent to be subject to the personal jurisdiction of the United States District Court for the Central District of California in respect to any proceedings relative to the enforcement of that Order, including any proceeding related to contempt of court. Dated this _______ day of ______________, 200____. Executed at ______________________________________ (city and state). ____________________________________ Print Name ____________________________________ Signature Business Address: Home Address: OHS West:260475102.1 -2- STIPULATION AND PROTECTIVE ORDER RE USE OF CONFIDENTIAL DOCUMENTS AND INFORMATION CASE NO. SACV 08-00015 CJC(RNBX)

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