Dawn Wells v. Hair Solutions By M E Inc et al

Filing 69


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NOTE: CHANGES MADE BY THE COURT 1 2 3 4 5 6 7 Thomas T. McCormick, SBN 112723 MCCORMICK LAW FIRM A Professional Corporation 21-C Orinda Way, #203 Orinda, CA 94563 Telephone: 925.253.3700 Facsimile: 925.254.4174 Attorneys for Plaintiff, DAWN WELLS 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 DAWN WELLS, Case No.: CV12- 996 JAK (PLAx) 11 STIPULATED PROTECTIVE ORDER REGARDING DISCLOSURE AND USE OF DEFENDANT’S FINANCIAL INFORMATION Plaintiff, 12 13 v. 14 HAIR SOLUTIONS BY M.E., INC, a New York corporation, and DOES 1 through 20, inclusive, 15 Assigned to: Hon. John A. Kronstadt Roybal Federal Bldg 255 East Temple Street 750 - 7th Floor Los Angeles, CA 90012 16 17 Defendants. 18 Complaint Filed: November 7, 2011. Removed To Fed. Court: February 6, 2012. Pre-Trial Conf.: January 28, 2013. Trial Date: February 4, 2013. 19 20 21 22 23 24 STIPULATED PROTECTIVE ORDER REGARDING DISCLOSURE AND USE OF DEFENDANT’S FINANCIAL INFORMATION Plaintiff and cross-defendant, DAWN WELLS (“plaintiff”), and defendant and 25 cross-complainant HAIR SOLUTIONS BY M.E., INC. (“defendant”) (plaintiff and 26 defendants collectively “the Parties”), by and through their respective attorneys, agree and 27 stipulate to maintain as confidential all financial information disclosed by defendant as 28 requested by plaintiff. 1 Stipulated Protective Order. 1 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good 2 cause for the following Stipulated Protective Order Regarding Disclosure and Use of 3 Defendant’s Financial Information (“Protective Order”). 4 I. 5 Disclosure and discovery activity in this action will involve production of 6 confidential financial information from defendant, including but not limited to financial 7 information maintained by defendant, for which protection from public disclosure and 8 from use for any purpose other than prosecuting this litigation would be warranted. 9 Accordingly, the Parties hereby stipulate to this Protective Order. 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 PURPOSES & LIMITATIONS Unless otherwise agreed by the Parties, Protected Material (as defined below) 11 designated under the terms of this Protective Order shall be used by a Receiving Party (as 12 defined below) solely for this Action (as defined below), and shall not be used directly or 13 indirectly for any other purpose whatsoever. 14 This Protective Order shall only apply to material obtained through disclosure or 15 discovery in this action that is designated “CONFIDENTIAL” as defined below. Material 16 that is not obtained through disclosure or discovery in this matter is not covered by this 17 Protective Order. 18 The Parties acknowledge that this Protective Order does not confer blanket 19 protections on all disclosures during discovery. Designations under this Protective Order 20 shall be made with care and shall not be made absent a good faith belief that the designated 21 material satisfies the criteria set forth below. If it comes to a Producing Party’s attention 22 that designated material does not qualify for protection at all, or does not qualify for the 23 level of protection initially asserted, the Producing Party must promptly notify the other 24 Party that it is withdrawing or changing the designation. 25 II. DEFINITIONS 26 a. Party: any party to this Action, including all of its officers, directors, 27 28 employees, consultants, retained experts, and outside counsel (and their support staff). b. Disclosure or Discovery Material: all items or information, regardless of the 2 Stipulated Protective Order. 1 medium or manner generated, stored, or maintained (including, among other things, 2 testimony, transcripts, or tangible things) that are produced or generated in disclosures or 3 responses to discovery in this matter. 4 c. “Confidential” Information or Items: proprietary financial information 5 produced in discovery which is not generally known, which the Producing Party (as 6 defined below) has not made public, and which the Producing Party has a reasonable good 7 faith belief is protected from public disclosure by any applicable statute, regulation, or case 8 law. 9 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 d. from a Producing Party. 11 12 e. f. Designating Party: a Party or non-party that designates information or items that it produces in disclosures or in responses to discovery as “Confidential.” 15 16 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 13 14 Receiving Party: a Party that receives Disclosure or Discovery Material g. Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” pursuant to section VI below. 17 h. Action: the case of Dawn Wells v. Hair Solutions By M.E., Inc. (CV12- 996 18 JAK (PLAx)), United States District Court, Central District of California, Western 19 Division. 20 III. 21 Even after the termination of this litigation, the confidentiality obligations imposed 22 by this Order shall remain in effect on Protected Materials until a Designating Party agrees 23 otherwise in writing or an order from this Court otherwise directs. DURATION 24 IV. 25 The computation of any period of time prescribed or allowed by this Order shall be COMPUTATION OF TIME 26 governed by the provisions for computing time set forth in Federal Rule of Civil Procedure 27 6. 28 /// 3 Stipulated Protective Order. 1 V. SCOPE 2 a. The protections conferred by this Protective Order cover not only Disclosure 3 and Discovery Material governed by this Protective Order as addressed herein, but also 4 any information copied or extracted therefrom, as well as all copies, excerpts, summaries, 5 or compilations thereof, plus testimony, conversations, or presentations by Parties or their 6 counsel in court or in other settings that might reveal Protected Material. 7 b. Nothing in this Protective Order shall prevent or restrict a Producing Party’s 8 own disclosure or use of its own Disclosure and Discovery Material for any purpose, and 9 nothing in this Protective Order shall preclude any Producing Party from showing its 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 11 Discovery Material to an individual who prepared the Discovery Material. c. Nothing in this Protective Order shall be construed to prejudice any Party’s 12 right to use any Protected Material in court or in any court filing with consent of the 13 Producing Party or by Protective Order of the Court. 14 d. This Protective Order is without prejudice to the right of any Party to seek 15 further or additional protection of any Disclosure and Discovery Material or to modify this 16 Protective Order in any way, including, without limitation, a Protective Order that certain 17 matter not be produced at all. 18 VI. 19 a. Protected Material shall mean any Disclosure and Discovery Material produced 20 by defendant to plaintiff that relates to defendant’s confidential financial information and 21 bears the legend “CONFIDENTIAL.” Defendant may not designate as 22 “CONFIDENTIAL” any documents or information that does not relate to its financial 23 information. Nothing in this Protective Order shall be construed as preventing any Party 24 from objecting to the designation of any Protected Material or preventing any Party from 25 seeking further protection for any material it produces in discovery. 26 DESIGNATING PROTECTED MATERIAL b. Protected Material may include testimony given in deposition or in other pretrial 27 or trial proceedings that any Party identifies within thirty (30) days after receipt of the 28 record of the deposition, hearing, or other proceeding, as “CONFIDENTIAL.” All 4 Stipulated Protective Order. 1 testimony shall be considered Protected Material until after the thirty (30) day time limit 2 has run. The Party that designates transcript pages as “CONFIDENTIAL” must notify the 3 appropriate court reporter and pay any extra expense to have the transcript pages 4 containing Protected Material separately bound by the court reporter, who must affix to the 5 top of each such page the legend “CONFIDENTIAL,” as instructed by the Party or non- 6 party offering or sponsoring the witness or presenting the testimony. 7 VII. 8 An inadvertent failure to designate qualified information or items as 9 INADVERTENT FAILURES TO DESIGNATE. “CONFIDENTIAL” does not, standing alone, waive the Designating Party’s right to 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 secure protection under this Protective Order for such material. If material is appropriately 11 designated as “CONFIDENTIAL” after the material was initially produced, the Receiving 12 Party, on timely notification of the designation, must make reasonable efforts to assure that 13 the material is treated in accordance with the provisions of this Protective Order. 14 VIII. CHALLENGING ”CONFIDENTIAL” DESIGNATION. 15 a. A Party shall not be obligated to challenge the propriety of any designation 16 of Discovery Material under this Protective Order at the time the designation is made, and 17 a failure to do so shall not preclude a subsequent challenge thereto. 18 b. Any challenge to a designation of Disclosure and Discovery Material under 19 this Protective Order shall be written, shall be served on outside counsel for the Producing 20 Party, shall particularly identify the documents or information that the Receiving Party 21 contends should be differently designated, and shall state the grounds for the objection. 22 Thereafter, further protection of such material shall be resolved in accordance with the 23 following procedures: 24 (i) The objecting Party shall have the burden of conferring either in 25 person, in writing, or by telephone with the Producing Party claiming protection (as well as 26 other interested party) in a good faith effort to resolve the dispute. The Producing Party 27 shall have the burden of justifying the disputed designation; 28 (ii) Failing agreement, the Receiving Party may bring a motion to the 5 Stipulated Protective Order. 1 Court for a ruling that the Disclosure and Discovery Material in question is not entitled to 2 the status and protection of the Producing Party’s designation. The Parties’ entry into this 3 Protective Order shall not preclude or prejudice either Party from arguing for or against 4 any designation, establish any presumption that a particular designation is valid, or alter 5 the burden of proof that would otherwise apply in a dispute over discovery or disclosure of 6 information; ANY MOTION MUST COMPLY WITH LOCAL RULE 37. 7 (iii) Notwithstanding any challenge to a designation, the Disclosure and 8 Discovery Material in question shall continue to be treated as designated under this 9 Protective Order until one of the following occurs: (a) the Party who designated the 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 Disclosure and Discovery Material in question withdraws such designation in writing; or 11 (b) the Court rules that the Disclosure and Discovery Material in question is not entitled to 12 the designation. 13 IX. ACCESS TO AND USE OF PROTECTED MATERIAL 14 a. All Protected Material shall be used solely for this Lawsuit or any related 15 appellate proceeding, and not for any other purpose whatsoever, including without 16 limitation, or any business or competitive purpose or function, except as expressly 17 provided herein. Protected Material shall not voluntarily be distributed, disclosed or made 18 available to anyone except as expressly provided in this Protective Order. 19 b. Protected Material must be stored and maintained by counsel for a Receiving 20 Party at a location and in a secure manner that ensures that access is limited to the persons 21 authorized under this Protective Order. 22 c. Nothing in this Protective Order shall restrict in any way a Producing Party’s 23 use or disclosure of its own Protected Material. Nothing in this Protective Order shall 24 restrict in any way the use or disclosure of Discovery Material by a Receiving Party: (i) 25 that is or has become publicly known through no fault of the Receiving Party; (ii) that is 26 lawfully acquired by or known to the Receiving Party independent of the Producing Party; 27 (iii) previously produced, disclosed and/or provided by the Producing Party to the 28 Receiving Party or a non-party without an obligation of confidentiality and not by 6 Stipulated Protective Order. 1 inadvertence or mistake; (iv) with the consent of the Producing Party; or (v) pursuant to 2 Protective Order of the Court. 3 X. 4 Unless otherwise ordered by the Court or permitted in writing by the Designating DISCLOSURE OF “CONFIDENTIAL” INFORMATION OR ITEMS. 5 Party, a Receiving Party may disclose any information or item designated 6 “CONFIDENTIAL” to: 7 a. Counsel of record for the Parties, their employees, their staff, and their 8 support personnel (including any outside vendor for simple reproduction, computer 9 scanning, or photocopying); 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 b. Consultants and experts retained or consulted by counsel for the Parties to 11 assist in this action, provided that disclosure is only to the extent necessary to perform 12 such work; and provided that: (a) such expert or consultant has agreed to be bound by the 13 provisions of the Protective Order by signing a copy of Exhibit A; and (b) such expert or 14 consultant is not a current officer, director, or employee of a Party, nor anticipated at the 15 time of retention to become an officer, director or employee of a Party; 16 c. The Court, its personnel, and the jury; 17 d. Court reporters and videographers present at any hearing, deposition or trial; 18 e. The author of the document or the original source of the information; 19 f. The Parties to this case provided that, before being given access to Protected 20 Material, the Party shall be informed of the existence and contents of this Protective Order, 21 and shall agree to be bound by its terms; and 22 g. Any other person with the prior written consent of the Producing Party or by 23 Protective Order of this Court, provided that such person agrees to be bound by the 24 provisions of the Protective Order by signing a copy of Exhibit A. 25 XI. 26 PRODUCED IN OTHER LITIGATION 27 If a Receiving Party is served with a subpoena or an order issued in other litigation 28 PROTECTED MATERIAL SUBPOENAED OR ORDERED that would compel disclosure of any information or items designated in this action as 7 Stipulated Protective Order. 1 “CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in writing 2 (by facsimile or email, if possible) immediately and in no event more than three court days 3 after receiving the subpoena or order. Such notification must include a copy of the 4 subpoena or court order. 5 XII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 6 a. In the event of a disclosure of any Protected Material pursuant to this 7 Protective Order to any person or persons not authorized to receive such disclosure under 8 this Protective Order, the Party responsible for having made such disclosure, and each 9 Party with knowledge thereof, shall immediately notify counsel for the Producing Party 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 whose Protected Material has been disclosed and provide to such counsel all known 11 relevant information concerning the nature and circumstances of the disclosure. The 12 responsible disclosing Party shall also promptly take all reasonable measures to retrieve 13 the improperly disclosed Protected Material and to ensure that no further or greater 14 unauthorized disclosure and/or use thereof is made. 15 b. Unauthorized or inadvertent disclosure does not change the status of 16 Protected Material or waive the right to hold the disclosed document or information as 17 Protected. 18 XIII. FILING PROTECTED MATERIAL 19 All Protected Material marked as “CONFIDENTIAL” must be filed under seal 20 unless written permission from the Designating Party or a court order is obtained. A Party 21 that seeks to file under seal any Protected Material must comply with the applicable federal 22 and local rules. GOOD CAUSE FOR THE UNDER SEAL FILING MUST BE 23 SHOWN. 24 XIV. INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL 25 a. The inadvertent production by a Party of Disclosure and Discovery Material 26 subject to the attorney-client privilege, work-product protection, or any other applicable 27 privilege or protection, despite the Producing Party’s reasonable efforts to prescreen such 28 Disclosure and Discovery Material prior to production, will not waive the applicable 8 Stipulated Protective Order. 1 privilege and/or protection if a notice and request for return of such inadvertently produced 2 Disclosure and Discovery Material is made promptly after the Producing Party learns of its 3 inadvertent production. 4 b. Upon a notice and request from any Producing Party who has inadvertently 5 produced Disclosure and Discovery Material that it believes is privileged and/or protected, 6 each Receiving Party shall immediately return within five (5) days of such notice and 7 request such Protected Material or Disclosure and Discovery Material and all copies to the 8 Producing Party, except for any pages containing privileged markings by the Receiving 9 Party which shall instead be destroyed and certified as such by the Receiving Party to the 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 Producing Party. 11 c. Within five (5) days of the Producing Party’s notice and request for the 12 return and/or destruction of privileged Disclosure and Discovery Material, the Producing 13 Party shall provide a privilege log with entries for the inadvertently produced document(s). 14 The Producing Party shall maintain the referenced document(s) until the Parties resolve 15 any dispute concerning the privileged nature of such documents or the Court rules on any 16 motion to compel production of such documents. If a dispute arises concerning the 17 privileged nature of the document(s) demanded or returned, the Parties shall meet and 18 confer in good faith in an effort to resolve the dispute. If the Parties are unable to resolve 19 the dispute, the Receiving Party may file a motion to compel the production of such 20 document(s), in compliance with Local Rule 37. In the event of such a motion to compel, 21 the Producing Party shall have the burden to demonstrate the claimed privilege, work 22 product immunity or other immunity. However, in no case will the return of any demanded 23 document be delayed or refused by reason of a Party’s objection to the demand or by the 24 filing of a motion to compel, nor may a Party assert the fact of the inadvertent production 25 as a ground for any such motion. The Parties further agree that the Receiving Party will not 26 use or refer to any information contained within the document(s) at issue, including in 27 deposition or at trial or in any Court filing, unless and until such a motion to compel 28 9 Stipulated Protective Order. 1 production of that document is granted by a Court, except as such information may appear 2 in any applicable privilege log. 3 /// 4 XV. INADVERTENT FAILURE TO DESIGNATE PROPERLY 5 a. The inadvertent failure by a Producing Party to designate Disclosure and 6 Discovery Material as Protected Material with the designation provided for under this 7 Protective Order shall not waive any such designation provided that the Producing Party 8 notifies all Receiving Parties that such Disclosure and Discovery Material is protected 9 under the category of this Protective Order within fourteen (14) days of the Producing 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 Party learning of the inadvertent failure to designate. The Producing Party shall reproduce 11 the Protected Material with the correct confidentiality designation within seven (7) days 12 upon its notification to the Receiving Parties. Upon receiving the Protected Material with 13 the correct confidentiality designation, the Receiving Parties shall destroy all Disclosure 14 and Discovery Material that was not designated properly and certify the same. 15 b. A Receiving Party shall not be in breach of this Protective Order for any use 16 of such Disclosure and Discovery Material before the Receiving Party receives the notice 17 described in Paragraph 15(a), unless an objectively reasonable person would have realized 18 that the Disclosure and Discovery Material should have been appropriately designated with 19 a confidentiality designation under this Protective Order. Once a Receiving Party has 20 received the Protected Material with the correct confidentiality designation, the Receiving 21 Party shall treat such Disclosure and Discovery Material (subject to the exception in 22 Paragraph XV(c) below) at the appropriately designated level pursuant to the terms of this 23 Protective Order. 24 c. Protected Material produced without the designation of “CONFIDENTIAL” 25 may be so designated subsequent to production when the Producing Party failed to make 26 such designation at the time of production through inadvertence or error. If Disclosure and 27 Discovery Material is designated subsequent to production, the Receiving Party promptly 28 shall collect any copies that have been provided to individuals so that they can be re10 Stipulated Protective Order. 1 labeled with the “CONFIDENTIAL” designation. Notwithstanding the above, such 2 subsequent designation of “CONFIDENTIAL” shall apply on a going forward basis and 3 shall not disqualify anyone who reviewed “CONFIDENTIAL” materials only while the 4 materials were not marked “CONFIDENTIAL” from engaging in the activities set forth in 5 Paragraph IX. 6 XII. FINAL DISPOSITION 7 a. Unless otherwise ordered or agreed in writing by the Producing Party, each 8 Receiving Party must return all Protected Material to the Producing Party, or otherwise 9 destroy it, within 90 days of the termination of this litigation. As used in this subdivision, 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 “all Protected Material” includes all copies, abstracts, compilations, summaries or any 11 other form of reproducing or capturing any of the Protected Material. For purposes of this 12 Protective Order, “Final Disposition” occurs after any Protective Order, mandate, or 13 dismissal finally terminating the above-captioned action with prejudice, including all 14 appeals. 15 b. All Parties that have received any such Discovery Material shall certify in 16 writing that all such materials have been returned to the respective outside counsel of the 17 Producing Party or destroyed. Notwithstanding the provisions for return of Discovery 18 Material, outside counsel may retain one set of pleadings, correspondence and attorney and 19 consultant work product (but not document productions) for archival purposes. 20 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 21 Dated: September __, 2012 McCORMICK LAW FIRM, APC. 22 23 24 By __________________________________ Thomas T. McCormick, Esq. Attorney for Plaintiff. 25 26 27 28 11 Stipulated Protective Order. 1 Dated: September __, 2012 HOBART LINZER LLP. 2 By __________________________________ Rachael L. Shinoskie, Esq. Attorney for Defendant. 3 4 5 6 7 IT IS SO ORDERED 8 9 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 11 Dated: _____________, 2012 _____________________________________ Hon. Paul L. Abrams, United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Stipulated Protective Order. 1 2 EXHIBIT A I, ___________________________, acknowledge and declare that I have received a 3 copy of the Protective Order (“Protective Order”) in Dawn Wells v. Hair Solutions By 4 M.E., Inc. (CV12- 996 JAK (PLAx)), United States District Court, Central District of 5 California, Western Division. Having read and understood the terms of the Protective 6 Order, I agree to be bound by the terms of the Protective Order and consent to the 7 jurisdiction of said Court for the purpose of any proceeding to enforce the terms of the 8 Protective Order. 9 21-C Orinda Way, #203 Orinda, CA 94563 Tel: 925-253-3700; Fax: 925-254-4174 McCormick Law Firm 10 11 12 I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed this ___ day of _____________________, 2012, at _________________________. Signature: _______________________________ 13 14 15 16 17 _______________________________ Name of individual _______________________________ Present occupation/job description 18 _______________________________ Name of Company or Firm 19 _______________________________ 20 21 22 23 _______________________________ Address _______________________________ Telephone Number 24 25 26 27 28 13 Stipulated Protective Order.

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