Martin v. Home Depot U.S.A., Inc.
Filing
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Confidentiality Agreement and Stipulated PROTECTIVE ORDER, signed by Magistrate Judge Sandra M. Snyder on 11/10/11. (Verduzco, M)
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LAW OFFICES OF
WAGNER & JONES LLP
Nicholas J.P. Wagner #109455
Andrew B. Jones #076915
Daniel M. Kopfman #192191
Lawrence M. Artenian #103367
Paul C. Mullen #216447
1111 E. Herndon, Ste. 317
Fresno, CA 93720
559/449-1800
559/449-0749 Fax
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Attorneys for Plaintiff MICHAEL MARTIN
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UNITED STATES DISTRICT COURT
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EASTERN DIVISION - FRESNO
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MICHAEL MARTIN,
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Plaintiff,
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vs.
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HOME DEPOT U.S.A., INC., a
corporation, and DOES 1-25,
inclusive,
Defendants.
) Case No. 1:11-CV-298 AWI SMS
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) CONFIDENTIALITY AGREEMENT AND
) STIPULATED PROTECTIVE ORDER
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Plaintiff MICHAEL MARTIN ("Plaintiff') and Defendant THE
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HOME DEPOT U.S.A., INC. ("Defendant") (collectively the
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"Parties") possess certain confidential information which may he
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disclosed to the opposing party in this action pursuant to
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discovery undertaken herein. The Parties, through their
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attorneys of record, stipulate that they have no wish or
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intention to use confidential information for any purpose beyond
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this action. The purpose of this Agreement/Order is to ensure
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that the confidentiality of such information is protected
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consistent with California and federal law. This Agreement/Order
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is not intended to afford any protection to information that
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would not be considered confidential under applicable law.
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Pursuant to Local Rule 141.1(c), the Parties recognize the
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following types of information is eligible for protection as
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confidential information and jointly request that this Agreement
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be entered as an enforceable Order of this Court to protect the
confidential nature of the information protected by this
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Agreement/Order: Defendant asserts it is in possession, custody
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or control of information that contains and/or constitutes
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confidential information regarding employees and former
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employees or which involves trade secrets or confidential
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business information or private information, including, but not
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limited to, private financial information subject to protection
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under the California Constitution, California Civil Code,
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California Code of Civil Procedure or other applicable law
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(collectively referred to as "Confidential Information").
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Defendant has a cognizable interest in the Confidential
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Information, and the disclosure of such Confidential Information
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may result in harm to the disclosing party or other
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individuals/entities to which the information relates. Plaintiff
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contends that some of this information, which Defendant
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considers to be Confidential Information, is relevant to the
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above-captioned action and discoverable. Plaintiff is in
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possession of private financial information, subject to
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protection under California law, that Plaintiff has a cognizable
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interest in the Confidential Information produced by Plaintiff,
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and that the disclosure of such Confidential Information may
result in harm to Plaintiff.
CONFIDENTIALITY AGREEMENT
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Accordingly, subject to the approval of the Court, the
Parties agree that the following procedure shall be employed for
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the protection of the Parties' Confidential Information:
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For purposes of this Agreement/Order, Confidential
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Information means any document, writing, paper, reproduction,
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model, photograph, film, videotape, tangible thing, transcript
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or oral testimony or recorded statement, which the party in
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possession (the "Producing Party") designates as "Confidential."
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Whenever a Producing Party produces a document or
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thing containing information that said party deems to be
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Confidential Information, and which said party wishes to be
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subject to this Agreement/Order, the Producing Party shall mark
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or designate the document or thing "Confidential — Subject to
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Protective Order" or use words to that effect. The Parties will
act in good faith in determining whether information is
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Confidential Information and will not "blanket" designate all
produced documents as Confidential Information.
3. All material which a Producing Party designates
"Confidential" in this action shall be maintained in strict
confidence by the Parties, and used solely for the litigation of
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and/or arbitration hearing in this action. The Parties shall not
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intentionally disclose or permit to be disclosed material which
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is designated "Confidential" except to the extent that
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Confidential Information may be shared with the following
persons or parties unless otherwise indicated herein:
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(a)
All Parties to this action, their respective
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counsel, their legal and clerical staff, agents, and experts or
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consultants of such counsel to whom it is necessary that such
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confidential information be disclosed for the purpose of
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preparing for the litigation of and/or arbitration hearing in
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this action.
(b)
Individuals testifying at a deposition or during
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the trial or any related hearing in this action whom counsel for
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the parties believe, in good faith, it is necessary to disclose
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specific documents, subject to the conditions set forth in this
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Agreement/Order and provided that the Producing Party is given a
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reasonable opportunity to object to such disclosure and seek a
ruling from the Court if necessary;
(c)
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Those present in the room during the trial in
members;
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The Court and the Court's respective staff
(d)
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this matter, including all pre¬trial and motion hearings, and
during presentation/argument of this evidence, unless the Court
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orders otherwise; and
(e)
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Any other person as to whom the parties agree in
writing.
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Any material which a Producing Party considers to be
highly Confidential may be marked "Confidential — Attorneys'
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Eyes Only." Material designated as such shall not be disclosed
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to anyone other than legal counsel for the party to whom the
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documents have been produced ("Receiving Party") and the Court
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unless prior written authorization is obtained from the
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Producing Party. In the event the Receiving Party believes
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material designated as "Confidential - Attorneys' Eyes Only"
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needs to disclosed to other individuals, the Parties agree to
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"meet and confer" in an attempt to resolve the issue. In the
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event the Parties cannot agree on a resolution, the issue shall
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be presented to and resolved by the Court.
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5.
Counsel for all Parties in the within action, by
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executing this Agreement/Order, undertake to abide by and be
bound by its provisions, and to use due care to ensure that its
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provisions are known by and adhered to by those under their
supervision or control.
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The Receiving Party reserves the right to challenge
the designation of any documents as "Confidential" or
"Confidential - Attorneys' Eyes Only" by moving the Court for an
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order that the confidentiality designation be lifted. Nothing in
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this Agreement/Order shall be construed as changing the law with
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regard to which party has the burden of proving that information
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is "Confidential" or "Confidential - Attorneys' Eyes Only" or as
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changing the law with regard to when records may be sealed. The
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burden of establishing that a document is "Confidential" or
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"Confidential - Attorneys' Eyes Only" remains with the proponent
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of the confidentiality. Before bringing such a challenge, the
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Parties shall meet and confer in good faith in an attempt to
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resolve the issue without court intervention.
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7.
At the conclusion of this litigation, all documents
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and information designated as "Confidential" or "Confidential -
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Attorneys' Eyes Only" will be returned to the Producing Party,
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or counsel shall certify the destruction thereof, within a
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reasonable amount of time, unless the Court has deemed the
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originally designated confidential information otherwise as a
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result of a motion or any other procedure.
Use of Confidential Documents
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A court reporter or transcriber who reports or
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transcribes testimony designated as "Confidential Information"
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in this action that is designated as such on the record at the
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deposition or other proceeding, shall separately bind those
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portions of the testimony, and any "Confidential" exhibits, and
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shall mark them "Confidential — Subject to Protective Order,"
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but shall unbind them if deemed not "Confidential" by order of
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the court or by agreement of the Parties.
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9. If any Receiving Party or any of their representatives
(the "Compelled Party") becomes legally compelled or is required
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by a court, agency or governmental body to make any disclosure
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of information marked "Confidential" or "Confidential -
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Attorneys' Eyes Only" pursuant to this Agreement/Order, the
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Compelled Party shall immediately, but in no event later than
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three (3) business days after the Compelled Party receives a
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subpoena or otherwise becomes aware that he is or will be
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required to make such disclosure, notify the Producing Party by
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facsimile and telephone call to that party's counsel so that the
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Producing Party may move for a protective order or otherwise
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object or seek relief to prevent the disclosure of the
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Confidential Information.
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NO WAIVER OF PRIVILEGE
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10.
A Party who, through inadvertence or mistake, produces
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any material or information subject to a legitimate claim of
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attorney-client privilege or attorney work product doctrine
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without intending to waive the claim of privilege shall not be
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held to have waived that privilege with respect to either that
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document or the subject matter of that document if, within ten
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(10) days of discovering the inadvertent disclosure of the
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protected material, the Producing Party provides written notice
to the Receiving Party (a) identifying the material or
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information inadvertently produced, (b) stating the privilege
asserted, (c) and requesting its return by the Receiving Party.
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The Receiving Party, upon discovery of materials or
information where it is reasonably apparent that the information
is privileged under the attorney-client privilege or attorney
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work product doctrine, must either (a) promptly return the
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documents to the Producing Party as inadvertently disclosed
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material; or (b) notify the Producing Party, in writing, of the
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potential inadvertent disclosure, identify the materials or
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information by their "Bates" number, and provide the Producing
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Party with an opportunity to recall the material per the
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procedure established in Paragraph 10 .of this Agreement/Order.
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Notwithstanding the foregoing, this Agreement/Order is not
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intended to create attorney-client privilege or work product
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obligations beyond those recognized by California law, but is
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intended to create a process to ensure that the Parties' rights
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are protected.
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Upon the Receiving Party's receipt of written notice
from the Producing Party identifying inadvertently produced
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documents, the Receiving Party must promptly return the
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specified materials or information, any copies or notes thereof,
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and any materials derived from or based thereon. If privileged
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materials or information were produced in electronic form, the
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Receiving Party must provide a certification that the specified
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data and any copies thereof have been deleted.
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After the return of the documents subject to a claim
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of inadvertent production, the Receiving Party may contest the
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Producing Party's claim(s) of attorney-client privilege, work-
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product, or other protection from disclosure and submit such
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issue to the Court for determination.
That determination shall
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be made without regard to the fact that any such document
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previously has been produced, except that the Parties may argue
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that the circumstances support an inference that disclosure was
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not inadvertent.
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GENERAL PROVISIONS
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This Agreement/Order terminates and supersedes all
prior understandings or agreements on the subject matter hereof.
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This Agreement/Order is binding on all Parties to the
Agreement/Order when signed. If not approved by the Court, the
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Parties agree to treat all materials designated as
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"Confidential" or "Confidential - Attorneys' Eyes Only" under
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this Agreement/Order as "Confidential" or "Confidential -
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Attorneys' Eyes Only" until a stipulated protective order is
entered by the Court, at which such time that order shall cover
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such designations retroactively.
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Nothing in this Agreement/Order prevents any Party
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from applying to the Court for a modification of this
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Agreement/Order should the moving party believe that the
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Agreement/Order, as originally agreed upon, is hampering its
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efforts to prepare for trial; or from applying to the Court for
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further or additional protective agreements; or from an
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agreement between The. Parties to any modification to this
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Agreement/Order, subject to the approval of the Court.
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The failure of the producing party to designate
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information as "Confidential" or "Confidential - Attorneys' Eyes
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Only" shall not of itself be deemed a waiver in whole or in part
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of the claim of confidentiality, either as to specific
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information disclosed or as to other related information which
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has been previously designated as "Confidential" or
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"Confidential - Attorneys' Eyes Only," and the failure may be
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corrected by supplemental written notice to recipients.
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Nothing herein shall require any party to produce
documents or information which he/she/it otherwise believes are
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not discoverable.
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Dated: November 8, 2011
LAW OFFICES OF WAGNER & JONES LLP
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/s/ Andrew B. Jones
ANDREW B. JONES
Attorneys for Plaintiff
MICHAEL MARTIN
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Dated: November 8, 2011
OGLETREE, DEAKINS, NASH, SMOAK
& STEWART, P.C.
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/2/ Donald Choi
DONALD CHOI
Attorneys for Defendants
THE HOME DEPOT U.S.A., INC.
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ORDER
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that the
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provisions of the concurrently-filed Confidentiality Agreement
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and Stipulated Protective Order between Plaintiff MICHAEL MARTIN
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and Defendant THE HOME DEPOT U.S.A., INC., (“Agreement/Order”)
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shall be entered as the Order of the Court and be binding upon
the parties.
IT IS FURTHER ORDERED that any request to seal records must
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comply with the procedures set forth in Local Rule 141 and must
also comply with Federal Rule of Civil Procedure 26(c)(1),
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including that the requesting party must make a showing of good
cause.
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IT IS SO ORDERED.
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Dated:
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DEAC_Signature-END:
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/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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November 10, 2011
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