Darrell Greenland v. Chervon Holdings Limited

Filing 41

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich, re: Stipulation for Protective Order, 40 . (mz)

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Patrick F. Bright (SBN 68709)
[e-mail]
WAGNER, ANDERSON & BRIGHT, PC
3541 Ocean View Boulevard
Glendale, California 91208
Tel.: [phone]
Fax: [phone]

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Attorneys for Plaintiff Darrell Greenland

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Eric W. Hagen (SBN 192340)
[e-mail]
McDERMOTT WILL & EMERY LLP
2049 Century Part East
Suite 3800
Los Angeles, CA 90067
Tel: [phone]
Fax [phone]

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Jeffrey R. Gargano (pro hac vice)
[e-mail]
Avani Macaluso (pro hac vice)
[e-mail]
McDERMOTT WILL & EMERY LLP
227 Monroe Street
Chicago, IL 60606-5096
Tel: [phone]
Fax: [phone]
Attorneys for Defendants Chervon North America, Inc.;
Menard, Inc.; Lowe’s Home Centers, Inc.; and Lowe’s HIW, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DARRELL GREENLAND,

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Plaintiff,

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v.

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CHERVON NORTH AMERICA, INC.,
et al.,

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Case No. CV12-09747 GW- (AJWx)
STIPULATION FOR
PROTECTIVE ORDER
Judge: Hon. George H. Wu
Magistrate: Hon. Andrew J. Wistrich

Defendants.
AND RELATED COUNTERCLAIMS.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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On consideration of the Stipulation for Protection of Confidential Materials

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jointly submitted by Plaintiff Darrell Greenland and Defendants Chervon North

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America, Inc., Menard, Inc., Lowe’s Home Centers, Inc., and Lowe’s HIW, Inc.,

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the reasons set forth therein, and it appearing to the Court that such a Protective

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Order is necessary and appropriate and will facilitate discovery,

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IT IS THEREFORE ORDERED THAT:

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Stipulated Protective Order

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The production of documents and other disclosure of information in this

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litigation shall be subject to the requirements and obligations set forth herein and in

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accordance with Rule 26(c) of the Federal Rules of Civil Procedure.

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DEFINITIONS

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1.

“Party” shall mean: any party to this action, including all of its

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officers, directors, employees, consultants, retained experts, and outside counsel

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(and their support staff).

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2.

“Disclosure or Discovery Material” shall mean: all items or

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information, regardless of the medium or manner generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that are

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produced or generated in disclosures or responses to discovery in this matter.

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3.

“CONFIDENTIAL” shall mean: any Party’s or non-party’s

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confidential and nonpublic information, the disclosure of which the Producing

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Party and/or the non-party contends could cause harm to the business operations of

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the Producing Party and/or the non-party, or provide improper advantage to others,

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and that is not otherwise marked or designated by the Producing Party as

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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4.

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall

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mean: any Party’s and any non-party’s highly confidential and proprietary

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business, commercial, competitive, financial, marketing, sales and technical

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information
[PROPOSED] STIPULATED PROTECTIVE ORDER

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5.

“Receiving Party” shall mean: a Party that receives Disclosure or

Discovery Material from a Producing Party.
6.

“Producing Party” shall mean: a Party or non-party that produces

Disclosure or Discovery Material in this action.
7.

“Designating Party” shall mean: a Party or non-party that designates

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information or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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8.

“Protected Material” shall mean: any Disclosure or Discovery

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Material that is designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY.”

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9.

“Outside Counsel” shall mean: attorneys and their support staff who

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are not employees of a Party but who are retained to represent or advise a Party in

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this action.

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10.

“In-House Counsel” shall mean: attorneys and their support staff who

are employees of a Party.
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“Counsel” (without qualifier) shall mean: Outside Counsel and In-

House Counsel as well as their respective support staff.
12.

“Expert” shall mean: a person with specialized knowledge or

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experience in a matter pertinent to the litigation who has been retained by a Party or

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its Counsel to serve as an expert witness or as a consultant in this action. This

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definition includes a professional jury or trial consultant retained in connection with

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this litigation. Pursuant to Section 6 below, an Expert must become a “Qualified

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Expert” in order to view or access material designated as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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13.

“Professional Vendor” shall mean: Persons or entities that provide

litigation support services (e.g., photocopying; videotaping; translating; preparing

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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exhibits or demonstrations; organizing, storing, or retrieving data in any form or

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medium; etc.) and their employees and subcontractors.

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1.

SCOPE
The protections conferred by this Order cover not only Protected

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Material, but also any information copied or extracted therefrom, as well as all

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copies, excerpts, summaries, or compilations thereof, plus testimony, conversations,

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or presentations by Parties or Counsel to or in court or in other settings that might

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reveal Protected Material.

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2.

DURATION
Even after the termination of this litigation, the confidentiality

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obligations imposed by this Order shall remain in effect until a Designating Party

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agrees otherwise in writing or a court order otherwise directs.

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3.

DESIGNATING PROTECTED MATERIAL
3.1

Manner and Timing of Designations

Except as otherwise provided in this Order, or as otherwise stipulated or

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ordered, material that qualifies for protection under this Order must be so

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designated before the material is disclosed or produced. Designation in conformity

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with this Order requires the following:

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(a)

For information in documentary form (apart from transcripts of

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depositions or other pretrial or trial proceedings), the Producing Party must affix

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the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” at the bottom of each page that contains Protected Material. If only

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a portion or portions of the material qualifies for protection, the Producing Party

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also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins) and must specify, for each portion, the level of protection

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being asserted. A Party or non-party that makes original documents or materials

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available for inspection need not designate them for protection until after the

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inspecting Party has indicated which material it would like copied and produced.
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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After the inspecting Party has identified the documents it would like copied and

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produced, the Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order, then, before producing the specified

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documents, the Producing Party must affix the appropriate legend

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(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY”) at the bottom of each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins) and must specify, for each portion, the level

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of protection being asserted.

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(b)

For testimony given during a deposition or other pretrial or trial

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proceeding, each Party and/or each Party’s Counsel present during the giving of

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such testimony may identify testimony that it seeks to designate as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –ATTORNEYS’ EYES

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ONLY.” Once identified as such, this material shall be designated

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –ATTORNEYS’ EYES

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ONLY” and immediately treated as such under the provisions of this Protective

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Order. Each Party additionally may have up to 30 days after receipt of the formal

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transcript of the given testimony to identify any material that it seeks to designate

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as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –ATTORNEYS’ EYES

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ONLY.” The Party seeking such protection shall so notify the other Party in

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writing and identify the portions of the testimony for which protection is sought.

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Once identified, both Parties shall treat such material in accordance with the

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provisions in this Protective Order.

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(c)

For information produced in some form other than documentary,

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and for any other tangible items, the Producing Party must affix in a prominent

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place on the exterior of the container or containers in which the information or item

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is stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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ATTORNEYS’ EYES ONLY.” If only portions of the information or item warrant

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protection, the Producing Party, to the extent practicable, shall identify the

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protected portions, specifying whether they qualify as “CONFIDENTIAL” or as

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
3.2

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Inadvertent Failures to Designate

If the Designating Party, within a reasonable time after producing documents

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to the Receiving Party, discovers an inadvertent failure to designate qualified

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information or items as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY,” the Designating Party will not be deemed to have

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waived its right to secure protection under this Order for such material. The

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Designating Party shall, within a reasonable time, identify in writing to the

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Receiving Party such materials or items the Designating Party seeks to designate

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with the corrected level of protection indicated for those materials or items. Upon

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receipt of such written notification, the Receiving Party shall make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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4.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
4.1

Timing of Challenges

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Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable substantial unfairness, unnecessary

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economic burdens, or a later significant disruption or delay of the litigation, a Party

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does not waive its right to challenge a confidentiality designation by electing not to

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pursue a challenge promptly after the original designation is disclosed.

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4.2

Meet and Confer

A Party that elects to initiate a challenge to a Designating Party’s

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confidentiality designation must do so in good faith and must begin the process by

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conferring with counsel for the Designating Party. This conferring may be done by

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telephone. In conferring, the challenging Party must explain the basis for its belief
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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that the confidentiality designation was not proper and must give the Designating

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Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for

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the chosen designation. A challenging Party may proceed to the next stage of the

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challenge process only if it has engaged in this meet and confer process first.
4.3

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Challenging a Designation

If the parties are unable to agree as to whether the designation of discovery

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material is appropriate, the party or parties receiving the Protected Materials

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wishing to contest the designation may file a motion with the Court with regard to

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any Protected Materials in dispute. All Protected Materials are entitled to

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confidential treatment pursuant to the terms of this Order until and unless the

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parties formally agree in writing to the contrary or a contrary determination is made

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by the Court as to whether all or a portion of the Protected Material is entitled to

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confidential treatment.

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5.

ACCESS TO AND USE OF PROTECTED MATERIAL
5.1

Basic Principles

A Receiving Party may use Protected Material that is disclosed or produced

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by another Party or by a non-party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation. Such Protected

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Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of Section 10 of this Protective

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Order, “Final Disposition.”

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5.2

Disclosure of “CONFIDENTIAL” Information

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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Unless otherwise ordered by the court upon good cause shown or permitted

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in writing by the Designating Party, a Receiving Party may disclose information or

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items designated “CONFIDENTIAL” only to:
(a)

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the Receiving Party’s Outside Counsel in this action and

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employees of said Outside Counsel to whom it is reasonably necessary to disclose

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the information for this litigation;
(b)

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the officers, directors, and employees, including In-House

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Counsel, of the Receiving Party to whom disclosure is reasonably necessary for this

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litigation;
(c)

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Experts (1) to whom disclosure is reasonably necessary for this

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litigation and who have signed the Acknowledgment and Agreement to Be Bound

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attached as Exhibit A (“Agreement to Be Bound”), and (2) who have become a

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Qualified Expert pursuant to the procedures set forth in Section 6;

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(d)

the Court and its personnel;

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(e)

court reporters, their staff, and Professional Vendors to whom

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disclosure is reasonably necessary for this litigation;
(f)

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during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the Agreement to Be

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Bound; and

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(g)

the author of the designated document or the original source of

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the information, any person to whom such “CONFIDENTIAL” information was

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previously communicated, or any person to whom disclosure was in fact made

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during the regular course of business.

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5.3

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EYES ONLY” Information

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’

Unless otherwise ordered by the court upon good cause shown, or permitted
in writing by the Designating Party, a Receiving Party may only disclose

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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information or items designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” to:
(a)

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the Receiving Party’s Outside Counsel in this action and

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employees of said Outside Counsel to whom it is reasonably necessary to disclose

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the information for this litigation;
(b)

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Experts (1) to whom disclosure is reasonably necessary for this

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litigation, (2) who have signed the Agreement to Be Bound, and (3) become a

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Qualified Expert pursuant to the procedures set forth in Section 6;

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(c)

the Court and its personnel;

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(d)

court reporters, their staffs, and Professional Vendors to whom

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disclosure is reasonably necessary for this litigation; and
(e)

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the author of the designated document or the original source of

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the information, any person to whom such “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information was previously communicated, or any

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person to whom disclosure would have been made during the regular course of

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business.

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6.

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QUALIFICATION OF EXPERTS
6.1

Procedure and Requirements for Qualification

Unless otherwise ordered by the court or agreed in writing by the

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Designating Party, an Expert must become authorized to view any materials

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” (i.e., a “Qualified Expert”). To become a Qualified

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Expert, the Party retaining the Expert (the “Retaining Party”) must provide to any

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other Party (1) the full name of the Expert and the city and state of his or her

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primary residence, (2) a copy of the Expert’s current curriculum vitae, (3) the name

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and number of the case, filing date, and court of any litigation that the Expert has

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offered expert testimony, including through a declaration, report, or testimony at a

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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deposition or trial, during the preceding five (5) years, and (4) a signed copy of the

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Agreement to be Bound.
6.2

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Objections to Qualification

A Party (the “Objecting Party”) that receives a request to qualify an Expert

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pursuant to Section 6.1 shall have five (5) court days from receipt of all information

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required in Section 6.1 to object in writing to an Expert becoming a Qualified

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Expert under Section 6.1. Any such objection must set forth in detail the grounds

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on which it is based. After the expiration of the 5-day period, if no objection has

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been asserted, the Expert will become a Qualified Expert.
6.3

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Procedure for Responding to Objections for Qualification

If an objection is timely asserted, the Retaining Party must meet and confer

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with the Objecting Party to attempt to resolve the matter by agreement. If no

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agreement is reached, the Retaining Party may file a motion pursuant to Civil Local

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Rule 37 (and in compliance with Civil Local Rule 79-5.1, if applicable) seeking

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permission from the court to qualify the Expert under Section 6.1.

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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

If a Receiving Party is served with a subpoena or an order issued in other

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litigation that seeks disclosure of any information or items designated in this action

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as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” the Receiving Party must so notify the Designating Party in writing upon

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learning that the subpoena or order seeks disclosure of such information or items.

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Such notification must include a copy of the subpoena or court order. The

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Receiving Party also must immediately inform in writing the Party who caused the

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subpoena or order to issue in the other litigation that some or all of the material

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covered by the subpoena or order is the subject of this Protective Order. In

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addition, the Receiving Party must deliver a copy of this Stipulated Protective

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Order promptly to the Party in the other action that caused the subpoena or order to
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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issue. The purpose of imposing these duties is to alert the interested parties to the

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existence of this Protective Order and to afford the Designating Party in this case an

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opportunity to try to protect its confidentiality interests in the court from which the

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subpoena or order issued. The Designating Party shall bear the burdens and the

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expenses of seeking protection in that court of its confidential material –

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8.

MATERIAL

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UNAUTHORIZED DISCLOSURE OF PROTECTED

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Protective Order, the Receiving Party must immediately (a) notify in writing the

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Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all copies of the Protected Material, (c) inform the person or persons to whom

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unauthorized disclosures were made of all the terms of this Order, and (d) request

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such person or persons to execute the Agreement to Be Bound.

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9.

FILING PROTECTED MATERIAL

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Any filing of Protected Material may be filed under seal without a separate

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court order provided the pleadings have a reference to this section of this Protective

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Order.

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10.

FINAL DISPOSITION

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Unless otherwise ordered or agreed in writing by the Producing Party, within

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sixty (60) days after the final termination of this action, each Receiving Party must

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return all Protected Material to the Producing Party or destroy all Protected

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Material. As used in this subdivision, “all Protected Material” includes all copies,

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abstracts, compilations, summaries or any other form of reproducing or capturing

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any of the Protected Material. Whether the Protected Material is returned or

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destroyed, the Receiving Party must submit a written certification to the Producing

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Party (and, if not the same person or entity, to the Designating Party) by the sixty-

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day deadline that confirms all Protected Material was returned or destroyed and
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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that affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or other forms of reproducing or capturing any of the

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Protected Material or any information copied or extracted therefrom.

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Notwithstanding this provision, Outside Counsel are entitled to retain an archival

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copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence

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and attorney work product, even if such materials contain Protected Material. Any

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such archival copies that contain or constitute Protected Material remain subject to

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this Protective Order as set forth in Section 2 of this Protective Order, “Duration.”

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11.

11.1 Right to Further Relief

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Nothing in this Order abridges the right of any person to seek its
modification by the Court in the future.
11.2 Right to Assert Other Objections

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MISCELLANEOUS

By stipulating to the entry of this Protective Order, no Party waives any right

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it otherwise would have to object to disclosing or producing any information or

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item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence any of the

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material covered by this Protective Order.

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Dated: May 28, 2013

/s/ Patrick F. Bright
Patrick F. Bright
Attorneys for Plaintiff Darrell Greenland

Dated: May 28, 2013

/s/ Eric W. Hagen
Eric W. Hagen
Attorneys for Defendants Chervon North
America, Inc.; Menard, Inc.; Lowe’s Home
Center, Inc.; and Lowe’s HIW, Inc.

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IT IS SO ORDERED.

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Dated:

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5/30/13

/s/ Andrew J. Wistrich
The Honorable Andrew J. Wistrich
UNITED STATES MAGISTRATE JUDGE

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Stipulated Protective Order that

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was issued by the United States District Court for the Central District of California

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on ______________________[date] in the case of Darrell Greenland v. Chervon

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North America, Inc.; Menard, Inc.; Lowe’s Home Center, Inc.; and Lowe’s HIW,

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Inc., Case No. CV12-09747 GW- (AJWx). I agree to comply with and to be bound

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by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not disclose in

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any manner any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the provisions of this

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Stipulated Protective Order.

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I further agree to submit to the jurisdiction of the United States District Court

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for the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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Signature: __________________________________

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[PROPOSED] STIPULATED PROTECTIVE ORDER