Thurston v. Safeway, Inc., No. 3:2011cv04286 - Document 29 (N.D. Cal. 2012)
Court Description: Order Granting 28 Stipulated Protective Order.Signed by Judge Samuel Conti on 8/6/2012. (sclc1S, COURT STAFF) (Filed on 8/6/2012)
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Thurston v. Safeway, Inc. Doc. 29 Case3:11-cv-04286-SC Document28 Filed07/31/12 Page1 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Joseph N. Kravec, Jr. (admitted pro hac vice) Wyatt A. Lison (admitted pro hac vice) Maureen Davidson-Welling (pro hac to be filed) STEMBER FEINSTEIN DOYLE PAYNE & KRAVEC, LLC Allegheny Building, 17th Floor 429 Forbes Avenue Pittsburgh, PA 15219 Tel: (412) 281-8400 Fax: (412) 281-1007 Email: jkravec@stemberfeinstein.com wlison@stemberfeinstein.com mdavidsonwelling@stemberfeinstein.com Trenton H. Norris (Bar No. 164781) Monty Agarwal (Bar No. 191568) Rhonda S. Goldstein (Bar No. 250387) ARNOLD & PORTER, LLP Three Embarcadero Center, 7th Floor San Francisco, California 94111 Tel: (415) 471-3100 Fax: (415) 471-3400 Email: trent.norris@aporter.com monty.agarwal@aporter.com rhonda.goldstein@aporter.com ATTORNEYS FOR DEFENDANT Michael D. Braun (Bar No. 167416) BRAUN LAW GROUP, P.C. 10680 W. Pico Blvd., Suite 280 Los Angeles, CA 90064 Phone: (310) 836-6000 Fax: (310) 836-6010 Email: service@braunlawgroup.com Janet Lindner Spielberg (Bar No. 221926) LAW OFFICES OF JANET LINDNER SPIELBERG 12400 Wilshire Blvd., Suite 400 Los Angeles, CA 90025 Phone: (310) 392-8801 Fax: (310) 278-5938 Email: jlspielberg@jlslp.com ATTORNEYS FOR PLAINTIFF 19 IN THE UNITED STATES DISTRICT COURT 20 FOR THE NORTHERN DISTRICT OF CALIFORNIA 21 22 23 CHANEE THURSTON, on behalf of herself and all others similarly situated, Plaintiff, 24 27 [PROPOSED] STIPULATED PROTECTIVE ORDER v. 25 26 CASE NO.: 3:11-cv-04286-SC SAFEWAY INC., Defendant. 28 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Dockets.Justia.com Case3:11-cv-04286-SC Document28 Filed07/31/12 Page2 of 17 1 1. 2 PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 5 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 6 Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures 7 or responses to discovery and that the protection it affords from public disclosure and use extends 8 only to the limited information or items that are entitled to confidential treatment under the 9 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that 10 this Stipulated Protective Order does not entitle them to file confidential information under seal; 11 Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and the 12 standards that will be applied when a party seeks permission from the court to file material under 13 seal. 14 2. 15 16 17 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 19 Civil Procedure 26(c). 20 21 22 23 24 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter. 2.5 Designating Party: a Party or Non-Party that designates information or items that it 25 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 26 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 27 28 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, 1 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page3 of 17 1 transcripts, and tangible things), that are produced or generated in disclosures or responses to 2 discovery in this matter. 3 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the 4 litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a 5 consultant in this action, (2) is not a past or current employee of a Party or of a Party’s competitor, 6 and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party’s 7 competitor. 8 9 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or 10 Non-Party would create a substantial risk of serious harm that could not be avoided by less 11 restrictive means. 12 2.9 13 14 15 16 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.11 Outside Counsel of Record: attorneys who are not employees of a party to this action 17 but are retained to represent or advise a party to this action and have appeared in this action on 18 behalf of that party. 19 2.12 20 21 22 23 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.14 Professional Vendors: persons or entities that provide litigation support services (e.g., 24 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 25 storing, or retrieving data in any form or medium) and their employees and subcontractors. 26 27 2.15 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 28 2 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page4 of 17 1 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a 2 Producing Party. 3 3. 4 SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as 5 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 6 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 7 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 8 However, the protections conferred by this Stipulation and Order do not cover the following 9 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 10 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 11 publication not involving a violation of this Order, including becoming part of the public record 12 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 13 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 14 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 15 Protected Material at trial shall be governed by a separate agreement or order. 16 4. 17 DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 18 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 19 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 20 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 21 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 22 time limits for filing any motions or applications for extension of time pursuant to applicable law. 23 5. 24 DESIGNATING PROTECTED MATERIAL Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non- 25 Party that designates information or items for protection under this Order must take care to limit any 26 such designation to specific material that qualifies under the appropriate standards. To the extent it is 27 practical to do so, the Designating Party must designate for protection only those parts of material, 28 documents, items, or oral or written communications that qualify – so that other portions of the 3 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page5 of 17 1 material, documents, items, or communications for which protection is not warranted are not swept 2 unjustifiably within the ambit of this Order. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 4 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 5 encumber or retard the case development process or to impose unnecessary expenses and burdens on 6 other parties) expose the Designating Party to sanctions. If it comes to a Designating Party’s 7 attention that information or items that it designated for protection do not qualify for protection at all 8 or do not qualify for the level of protection initially asserted, that Designating Party must promptly 9 notify all other parties that it is withdrawing the mistaken designation. 10 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 11 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or 12 Discovery Material that qualifies for protection under this Order must be clearly so designated 13 before the material is disclosed or produced. 14 Designation in conformity with this Order requires: 15 (a) for information in documentary form (e.g., paper or electronic documents, but excluding 16 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the 17 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to 18 each page that contains protected material. If only a portion or portions of the material on a page 19 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 20 by making appropriate markings in the margins) and must specify, for each portion, the level of 21 protection being asserted. 22 A Party or Non-Party that makes original documents or materials available for inspection 23 need not designate them for protection until after the inspecting Party has indicated which material it 24 would like copied and produced. During the inspection and before the designation, all of the material 25 made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ 26 EYES ONLY.” After the inspecting Party has identified the documents it wants copied and 27 produced, the Producing Party must determine which documents, or portions thereof, qualify for 28 protection under this Order. Then, before producing the specified documents, the Producing Party 4 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page6 of 17 1 must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 2 ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. If only a portion or 3 portions of the material on a page qualifies for protection, the Producing Party also must clearly 4 identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must 5 specify, for each portion, the level of protection being asserted. 6 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 7 Designating Party identify on the record, before the close of the deposition, hearing, or other 8 proceeding, all protected testimony and specify the level of protection being asserted. When it is 9 impractical to identify separately each portion of testimony that is entitled to protection and it 10 appears that substantial portions of the testimony may qualify for protection, the Designating Party 11 may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right 12 to have up to 21 days to identify the specific portions of the testimony as to which protection is 13 sought and to specify the level of protection being asserted. Only those portions of the testimony that 14 are appropriately designated for protection within the 21 days shall be covered by the provisions of 15 this Stipulated Protective Order. Alternatively, a Designating Party may specify, at the deposition or 16 up to 21 days afterwards if that period is properly invoked, that the entire transcript shall be treated 17 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 18 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 19 other proceeding to include Protected Material so that the other parties can ensure that only 20 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 21 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 22 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 23 ATTORNEYS’ EYES ONLY.” 24 Transcripts containing Protected Material shall have an obvious legend on the title page that 25 the transcript contains Protected Material, and the title page shall be followed by a list of all pages 26 (including line numbers as appropriate) that have been designated as Protected Material and the level 27 of protection being asserted by the Designating Party. The Designating Party shall inform the court 28 reporter of these requirements. Any transcript that is prepared before the expiration of a 21-day 5 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page7 of 17 1 period for designation shall be treated during that period as if it had been designated “HIGHLY 2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the 3 expiration of that period, the transcript shall be treated only as actually designated. 4 (c) for information produced in some form other than documentary and for any other tangible 5 items, that the Producing Party affix in a prominent place on the exterior of the container or 6 containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY 7 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information 8 or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected 9 portion(s) and specify the level of protection being asserted. 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 11 designate qualified information or items does not, standing alone, waive the Designating Party’s 12 right to secure protection under this Order for such material. Upon timely correction of a 13 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 14 accordance with the provisions of this Order. 15 6. 16 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 17 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 18 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 19 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 20 confidentiality designation by electing not to mount a challenge promptly after the original 21 designation is disclosed. 22 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 23 by providing written notice of each designation it is challenging and describing the basis for each 24 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 25 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 26 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 27 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 28 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 6 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page8 of 17 1 Party must explain the basis for its belief that the confidentiality designation was not proper and 2 must give the Designating Party an opportunity to review the designated material, to reconsider the 3 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 4 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 5 has engaged in this meet and confer process first or establishes that the Designating Party is 6 unwilling to participate in the meet and confer process in a timely manner. 7 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 8 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 9 Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable) 10 within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the 11 meet and confer process will not resolve their dispute, whichever is earlier. Each such motion must 12 be accompanied by a competent declaration affirming that the movant has complied with the meet 13 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 14 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 15 shall automatically waive the confidentiality designation for each challenged designation. In 16 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 17 time if there is good cause for doing so, including a challenge to the designation of a deposition 18 transcript or any portions thereof. Any motion brought pursuant to this provision must be 19 accompanied by a competent declaration affirming that the movant has complied with the meet and 20 confer requirements imposed by the preceding paragraph. 21 The burden of persuasion in any such challenge proceeding shall be on the Designating 22 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 23 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 24 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 25 retain confidentiality as described above, all parties shall continue to afford the material in question 26 the level of protection to which it is entitled under the Producing Party’s designation until the court 27 rules on the challenge. 28 7 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page9 of 17 1 2 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 3 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 4 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 5 the categories of persons and under the conditions described in this Order. When the litigation has 6 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 7 DISPOSITION). 8 9 10 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 11 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 12 information or item designated “CONFIDENTIAL” only to: 13 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 14 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 15 this litigation; 16 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party 17 to whom disclosure is reasonably necessary for this litigation and who have signed the 18 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 20 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 21 to Be Bound” (Exhibit A); 22 (d) the court and its personnel; 23 (e) court reporters and their staff, professional jury or trial consultants, and Professional 24 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 26 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 27 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 28 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 8 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page10 of 17 1 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 2 bound by the court reporter and may not be disclosed to anyone except as permitted under this 3 Stipulated Protective Order. 4 5 6 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 7 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 8 Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 9 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 10 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 11 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 12 this litigation; 13 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this 14 litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and 15 (3) as to whom the procedures set forth in paragraph 7.4(a), below, have been followed; 16 (c) the court and its personnel; 17 (d) court reporters and their staff, professional jury or trial consultants, and Professional 18 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 19 “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 20 21 22 23 24 (e) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts. (a) Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a 25 Party that seeks to disclose to an Expert (as defined in this Order) any information or item that has 26 been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to 27 paragraph 7.3(b) first must make a written request to the Designating Party that (1) identifies the 28 general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information 9 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page11 of 17 1 that the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of the 2 Expert and the city and state of his or her primary residence, (3) attaches a copy of the Expert’s 3 current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person or entity 4 from whom the Expert has received compensation or funding for work in his or her areas of 5 expertise or to whom the expert has provided professional services, including in connection with a 6 litigation, at any time during the preceding five years,1 and (6) identifies (by name and number of the 7 case, filing date, and location of court) any litigation in connection with which the Expert has offered 8 expert testimony, including through a declaration, report, or testimony at a deposition or trial, during 9 the preceding five years. 10 (b) A Party that makes a request and provides the information specified in the preceding 11 respective paragraphs may disclose the subject Protected Material to the identified Expert unless, 12 within 14 days of delivering the request, the Party receives a written objection from the Designating 13 Party. Any such objection must set forth in detail the grounds on which it is based. 14 (c) A Party that receives a timely written objection must meet and confer with the 15 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement 16 within seven days of the written objection. If no agreement is reached, the Party seeking to make the 17 disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with 18 Civil Local Rule 79-5 and General Order 62, if applicable) seeking permission from the court to do 19 so. Any such motion must describe the circumstances with specificity, set forth in detail the reasons 20 why the disclosure to the Expert is reasonably necessary, assess the risk of harm that the disclosure 21 would entail, and suggest any additional means that could be used to reduce that risk. In addition, 22 any such motion must be accompanied by a competent declaration describing the parties’ efforts to 23 resolve the matter by agreement (i.e., the extent and the content of the meet and confer discussions) 24 25 26 27 28 1 If the Expert believes any of this information is subject to a confidentiality obligation to a thirdparty, then the Expert should provide whatever information the Expert believes can be disclosed without violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating Party regarding any such engagement. 10 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page12 of 17 1 and setting forth the reasons advanced by the Designating Party for its refusal to approve the 2 disclosure. 3 In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden of 4 proving that the risk of harm that the disclosure would entail (under the safeguards proposed) 5 outweighs the Receiving Party’s need to disclose the Protected Material to its Expert. 6 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 7 LITIGATION 8 If a Party is served with a subpoena or a court order issued in other litigation that compels 9 disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY 10 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must: (a) promptly notify in writing 11 the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) 12 promptly notify in writing the party who caused the subpoena or order to issue in the other litigation 13 that some or all of the material covered by the subpoena or order is subject to this Protective Order. 14 Such notification shall include a copy of this Stipulated Protective Order; and (c) cooperate with 15 respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected 16 Material may be affected.2 17 If the Designating Party timely seeks a protective order, the Party served with the subpoena 18 or court order shall not produce any information designated in this action as “CONFIDENTIAL” or 19 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the court 20 from which the subpoena or order issued, unless the Party has obtained the Designating Party’s 21 permission. The Designating Party shall bear the burden and expense of seeking protection in that 22 court of its confidential material – and nothing in these provisions should be construed as 23 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from 24 another court. 25 26 27 28 2 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. 11 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page13 of 17 1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 2 THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by a Non-Party in this 4 action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 5 EYES ONLY.” Such information produced by Non-Parties in connection with this litigation is 6 protected by the remedies and relief provided by this Order. Nothing in these provisions should be 7 construed as prohibiting a Non-Party from seeking additional protections. 8 9 10 (b) Party’s confidential information in its possession, and the Party is subject to an agreement with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 11 12 In the event that a Party is required, by a valid discovery request, to produce a Non- 1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 13 2. promptly provide the Non-Party with a copy of the Stipulated Protective 14 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the 15 information requested; and 16 3. make the information requested available for inspection by the Non-Party. 17 (c) If the Non-Party fails to object or seek a protective order from this court within 14 18 days of receiving the notice and accompanying information, the Receiving Party may produce the 19 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 20 seeks a protective order, the Receiving Party shall not produce any information in its possession or 21 control that is subject to the confidentiality agreement with the Non-Party before a determination by 22 the court.3 Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 23 seeking protection in this court of its Protected Material. 24 25 26 27 28 3 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 12 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page14 of 17 1 10. 2 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 3 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 4 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 5 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 6 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 7 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 8 Be Bound” that is attached hereto as Exhibit A. 9 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 10 MATERIAL 11 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 12 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 13 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 14 modify whatever procedure may be established in an e-discovery order that provides for production 15 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 16 parties reach an agreement on the effect of disclosure of a communication or information covered by 17 the attorney-client privilege or work product protection, the parties may incorporate their agreement 18 in the stipulated protective order submitted to the court. 19 12. 20 21 22 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 23 no Party waives any right it otherwise would have to object to disclosing or producing any 24 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 25 Party waives any right to object on any ground to use in evidence of any of the material covered by 26 this Protective Order. 27 28 12.3 Filing Protected Material. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the 13 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page15 of 17 1 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 2 Material must comply with Civil Local Rule 79-5 and General Order 62. Protected Material may 3 only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected 4 Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a sealing order will issue 5 only upon a request establishing that the Protected Material at issue is privileged, protectable as a 6 trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file 7 Protected Material under seal pursuant to Civil Local Rule 79-5(d) and General Order 62 is denied 8 by the court, then the Receiving Party may file the Protected Material in the public record pursuant 9 to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 10 11 13. FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 12 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 13 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 14 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 15 the Protected Material is returned or destroyed, the Receiving Party must submit a written 16 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 17 by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected Material 18 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 19 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 20 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 21 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 22 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 23 and expert work product, even if such materials contain Protected Material. Any such archival copies 24 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 25 Section 4 (DURATION). 26 27 28 14 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page16 of 17 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 DATED: July 31, 2012 4 By: s/Joseph N. Kravec, Jr. JOSEPH N. KRAVEC, JR. MAUREEN DAVIDSON-WELLING WYATT A. LISON MICHAEL D. BRAUN JANET LINDNER SPIELBERG 5 6 7 Attorneys for Plaintiff CHANEE THURSTON 8 9 10 DATED: July 31, 2012 11 By: s/Monty Agarwal via email consent TRENTON H. NORRIS MONTY AGARWAL RHONDA S. GOLDSTEIN 12 13 Attorneys for Defendant SAFEWAY INC. 14 15 16 PURSUANT TO STIPULATION, IT IS SO ORDERED. 17 18 19 DATED: August 6, 2012 _____________________________________ SAMUEL CONTI United States District Judge 20 21 22 23 24 25 26 27 28 15 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC Case3:11-cv-04286-SC Document28 Filed07/31/12 Page17 of 17 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ 4 [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for the 6 Northern District of California on [date] in the case of Chanee Thurston v. Safeway, Inc., Case No.: 7 3:11-cv-04286-SC. I agree to comply with and to be bound by all the terms of this Stipulated 8 Protective Order and I understand and acknowledge that failure to so comply could expose me to 9 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in 10 any manner any information or item that is subject to this Stipulated Protective Order to any person 11 or entity except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the 13 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 14 Order, even if such enforcement proceedings occur after termination of this action. 15 I hereby appoint __________________________ [print or type full name] of 16 _______________________________________ [print or type full address and telephone number] as 17 my California agent for service of process in connection with this action or any proceedings related 18 to enforcement of this Stipulated Protective Order. 19 20 Date: _________________________________ 21 City and State where sworn and signed: _________________________________ 22 23 24 25 Printed name: ______________________________ [printed name] Signature: __________________________________ [signature] 26 27 28 16 [Proposed] Stipulated Protective Order; Case No.: 3:11-cv-04286-SC
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