Tessa Owen v. L Occitane Inc et al

Filing 20

PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 18 . (See Order for details) (bem)

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JASON M. WUCETICH (SBN 222113)
[e-mail]
DIMITRIOS V. KOROVILAS (SBN 247230)
[e-mail]
WUCETICH & KOROVILAS LLP
222 North Sepulveda Boulevard, Suite 2000
El Segundo, CA 90245
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
TESSA OWEN, individually and on
behalf of all others similarly situated

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WILLIAM A. MOLINSKI (SBN 145186)
[e-mail]
MELANIE D. PHILLIPS (SBN 245584)
[e-mail]
RAIJA J. HORSTMAN (SBN 277301)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
L’Occitane, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TESSA OWEN, individually and on
behalf of all others similarly situated,
Plaintiff,

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Case No. CV 12-09841 MMM (JCGx)
[PROPOSED] PROTECTIVE ORDER

v.
L’OCCITANE, INC., and DOES 1
through 10,
Defendants.

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CV 12-09841-MMM(JCGX)
[PROPOSED] PROTECTIVE ORDER

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The parties, by and through their respective counsel of record, have

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submitted a joint stipulation governing the disclosure of “Confidential Information”

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to facilitate discovery in this action of documents and information that may

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potentially involve the production of confidential, proprietary, and/or private

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information for which special protection from public disclosure and from use for

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any purpose other than prosecuting this litigation would be warranted. Good cause

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having been shown, IT IS HEREBY ORDERED as follows:
DEFINITIONS AND RULES

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1.

As used in this Protective Order, these terms have the following

meanings:
a.

“Attorneys” means counsel of record and in-house counsel to

the undersigned Parties;
b.

“Confidential Materials” are Materials designated pursuant to

paragraph 2;
c.

“Document(s)” are all materials within the scope of

Fed. R. Civ. P. 34; and
d.

“Written Assurance” means an executed document in the form

attached as Exhibit A;
e.

“Designating Party” means the Party that designates Materials

as “Confidential;”
f.

“Receiving Party” means the Party that receives Materials

designated as “Confidential;”
g.

“Information” means the content of Documents or Testimony,

any interrogatory responses, or other discovery responses;
h.

“Testimony” means all depositions, declarations or other

testimony taken or used in this Proceeding;
i.

“Material(s)” means any Document, Information or Testimony.

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[PROPOSED] PROTECTIVE ORDER

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2.

By identifying Materials as “Confidential,” a party may designate any

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Materials, that it in good faith believes to constitute or contain non-public

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information that is entitled to confidential treatment under applicable law,

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including, but not limited to, Materials which (i) contain trade secrets or other

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commercially sensitive information, (ii) contain sensitive or personal information of

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employees or customers, or (iii) otherwise adversely affect the Designating Party’s

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business, commercial financial, or personal interests, or are reasonably likely to

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pose a risk of significant harm to the Designating Party’s competitive or financial

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position or the competitive or financial position of a non-party that is owed a duty

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of confidentiality by the Designating Party, or other confidential information

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entitled to protection under 26(c)(1)(G) of the Federal Rules of Civil Procedure.

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A party may not designate as “Confidential” any Materials that:
a.

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at the time of the production or disclosure, is publicly available

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as evidenced by: 1) a citation permitting unrestricted access, or 2) is in the

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public domain, as evidenced by a written document, drawing or photograph

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not having a proprietary, confidential or restricted notice;
b.

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through no wrongful act or fault of the Receiving Party, is or has

become part of the public domain; or
c.

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the Receiving Party can show it already lawfully possessed at

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the time of the production or disclosure without being subjected to any

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obligation to maintain the confidentiality of the information.

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3.

All Confidential documents, along with the information contained in

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the documents, shall be used solely for the purpose of this action and no person

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receiving such documents, or information contained in such documents shall,

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directly or indirectly, transfer, disclose, or communicate in any way the contents of

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the documents or information therein to any person other than those specified in

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paragraph 4.

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4.

Access to any Confidential document shall be limited to:

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a.

the Court and its officers;

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b.

Attorneys and their office associates, legal assistants, and

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stenographic and clerical employees;
c.

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persons shown on the face of the document to have authored or

received it;

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d.

court reporters retained to transcribe testimony;

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e.

officers, directors, principals, representatives and employees of

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the parties, only to the extent reasonably necessary to assist in the litigation;
f.

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outside independent persons (i.e., persons not currently or

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formerly employed by, consulting with, or otherwise associated with any

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party) who are retained by a party or its attorneys to furnish expert services,

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or to provide assistance as mock jurors or focus group members or the like,

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and/or to give testimony in this action.

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The parties may agree in writing or on the record to permit access to

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Confidential Materials to individuals not otherwise granted access by the terms of

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this Protective Order. The writing or statement on the record must identify the

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particular individual to whom the Confidential Materials will be disclosed and

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specify, by Bates number if possible, the Confidential Materials to be disclosed,

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and shall obtain a Written Assurance from each individual prior to disclosing the

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Confidential Materials.

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5.

Third parties producing documents in the course of this action may

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also designate documents as “Confidential” subject to the same protections and

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constraints as the parties to the action. A copy of this Protective Order shall be

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served along with any subpoena served in connection with this action. All

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documents produced by such third parties shall be treated as “Confidential” for a

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period of fifteen (15) days from the date of their production, and during that period

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any party may designate such documents as “Confidential” pursuant to the terms of
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[PROPOSED] PROTECTIVE ORDER

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this Protective Order.
6.

Each person appropriately designated pursuant to paragraphs 4(e) and

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4(f) (herein “Such Person”), in advance, and as a condition of receiving any

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Confidential Materials, shall execute a “Written Assurance” in the form attached as

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Exhibit A. Opposing counsel shall be notified at least fourteen (14) days prior to

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disclosure to any Such Person and identify as to each the Confidential Materials, by

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Bates number if possible, that are sought to be disclosed to each Such Person. Such

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notice shall provide a reasonable description of Such Person to whom disclosure is

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sought sufficient to permit objection to be made. If a party objects in writing to

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such disclosure within fourteen (14) days after receipt of notice, no disclosure shall

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be made until the objecting party obtains the prior approval of the Court. Notices

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and objections made pursuant to this paragraph 6 may be made electronically in

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writing by e-mail or fax, followed by a confirmation copy by US Mail.

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7.

All depositions or portions of depositions taken in this action that

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contain confidential information may be designated “Confidential” and thereby

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obtain the protections accorded other “Confidential” documents. Confidentiality

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designations for depositions shall be made either on the record or by written notice

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to the other party within fourteen (14) days after receipt of the transcript.

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Transcripts not designated as “Confidential” at the time of the deposition will be

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treated as Confidential Materials until 15 days after its receipt by all parties. The

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deposition of any witness (or any portion of such deposition) that encompasses

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Confidential Materials shall be taken only in the presence of persons who are

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qualified to have access to such information and permitted to attend such

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depositions. A party may request that anyone not authorized to receive

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Confidential Materials, or not permitted to attend depositions or court sessions

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pursuant to the Federal Rules of Evidence, exit the deposition during the

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discussions of any such information, but the failure of any party to request the

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removal of anyone not authorized to receive such information or attend shall not
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[PROPOSED] PROTECTIVE ORDER

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constitute a waiver of the right to subsequently designate any or all portions of the

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deposition as “Confidential” in accordance with this paragraph. The term

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“deposition” as used herein also applies to any notes, extracts, data or information

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from each deposition made or communicated by attorneys for the parties relating to

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the deposition.

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8.

The inadvertent production by any of the undersigned Parties or non-

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Parties to the action of any Materials during discovery without a “Confidential”

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designation, shall be without prejudice to any claim that such item is “Confidential”

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and such Party shall not be held to have waived any rights by such inadvertent

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production. Any party who inadvertently fails to identify documents as

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“Confidential” shall have fourteen (14) days from the discovery of its inadvertent

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production to provide written notice of the error and substituted copies of the

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inadvertently produced documents. Any party receiving such inadvertently

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unmarked documents shall use its best efforts to retrieve documents distributed to

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persons not entitled to receive documents with the corrected designation, and to

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advise the other party of the recipients of the documents prior to retrieval. The

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Party that received the inadvertently produced Materials shall promptly destroy the

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inadvertently produced materials and all copies thereof.

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9.

Any party who inadvertently discloses documents that are privileged

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or otherwise immune from discovery shall, promptly upon discovery of such

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inadvertent disclosure, so advise the Receiving Party and request that the

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documents be returned or destroyed. The Receiving Party shall return or destroy

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such inadvertently produced documents, including all copies, within fourteen (14)

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days of receiving such a written request.

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10.

With respect to Court filing or use at trial or on appeal of Confidential

Materials produced hereunder:
a.

If a party files a document containing Confidential Materials

with the Court, it shall do so in compliance with the Electronic Case Filing
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Procedures for the Central District of California.
b.

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Before any Confidential Materials are filed with the Court for

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any purpose, the party seeking to file the Confidential Material shall seek

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permission of the Court by appropriate motion to file the material under seal,

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providing notice to any third party whose designation of produced Materials

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as “Confidential” in the action may be affected. The Court permitting, until

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permission is granted, the party seeking permission shall file the material

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provisionally under seal, so marked, unless the producing party agrees

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otherwise. The parties agree to and will follow and abide by applicable law,

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including Local Civil Rule 79-5, with respect to filing documents under seal

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in this Court.
c.

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Any documents approved by the Court for filing under seal shall

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be so designated in a cover sheet, captioned “Filed” or “Provisionally Filed”

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as the case may be followed by “Under Seal Pursuant to Protective Order by

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Order of Court,” and each page shall carry a stamp with the same

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designation. The Order of Permission to File Under Seal may request or

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direct the Clerk of Court to maintain such documents under seal, unavailable

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to anyone but Outside Counsel of record for the parties. Prior to disclosure at

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trial or a hearing of Confidential Materials the parties may seek from the

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Court further protections against public disclosure as the parties may deem

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necessary.

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11.

In the event that counsel for a Party receiving Materials designated as

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“Confidential” objects to such designation with respect to any or all of such items,

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said counsel shall advise counsel for the Designating Party, in writing, of such

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objections, the specific Materials to which each objection pertains, and the specific

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reasons and support for such objections (the “Designation Objections”). The

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Designation Objections shall be set forth in a writing devoted exclusively to the

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issues of the Designation Objections and labeled or captioned as “Designation
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Objections.” Counsel for the Designating Party shall have ten (10) calendar days

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from receipt of the written Designation Objections to either (a) agree in writing to

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de-designate Materials pursuant to all or any of the Designation Objections; or (b)

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send the objecting party a meet-and-confer letter pursuant to Local Civil Rule 37

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disputing all or any of the Designation Objections. If the Designating Party does

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not agree to de-designate the Materials in the Designation Objections and instead

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pursues the meet-and-confer process, the parties shall conduct the in-person meet

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and confer required by Local Rule 37 within ten (10) calendar days of the

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Designating Party’s meet-and-confer letter. The Designating Party shall thereafter

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serve the objecting party with a joint stipulation pursuant to Local Rule 37 within

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seven (7) calendar days of the parties’ in-person meet and confer session. The

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Designating Party shall thereafter file the joint stipulation and related motion papers

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with the Court within 2 (two) court days of receipt of the objecting party’s portion

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of the joint stipulation, to seek relief from the Court to uphold any or all

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designations on documents, testimony or information addressed by the Designation

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Objections (the “Designation Motion”). Pending a resolution of the Designation

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Motion by the Court, any and all existing designations on the documents, testimony

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or information at issue in the Designation Motion shall remain in place. The

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Designating Party shall have the burden of proving that the information in question

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is within the scope of protection afforded by Fed. R. Civ. P. 26(c). In the event that

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the Designating Party fails to meet any of the deadlines set forth in this paragraph to

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either agree to de-designate Materials, to issue a meet-and-confer letter, to serve its

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portion of a joint stipulation, or to file the joint stipulation and related motion

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papers, then the Materials shall be de-designated in accordance with the

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Designation Objections applicable to such Materials.

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12.

Within sixty (60) days of the termination of this action, including any

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appeals, each party shall, at the election of the producing party, either destroy or

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return to the producing party all documents designated by the producing party as
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[PROPOSED] PROTECTIVE ORDER

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“Confidential” and all copies of such documents, and shall destroy all copies,

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abstracts, compilations, or summaries of the Confidential Materials. Each party

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shall provide a certification as to such return or destruction as having been

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completed within the 60-day period. Notwithstanding this provision, attorneys are

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entitled to retain under seal appropriately designated in the caption as “Retained

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Under Seal Pursuant to Protective Order” an archival copy of all pleadings, motion

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papers, transcripts, legal memoranda, correspondence or attorney work product,

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even if such materials contain Confidential Materials. Such retained documents

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may be unsealed only by appropriate order of Court, or by permission in writing of

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the producing party.
13.

Any party may apply to the Court for a modification of this Protective

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Order, and nothing in this Protective Order shall be construed to prevent a party

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from seeking such further provisions enhancing or limiting confidentiality as may

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be appropriate. This Protective Order does not alter, waive, modify, or abridge any

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right, privilege or protection otherwise available to any Party with respect to the

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discovery of matters, including but not limited to any Party’s right to assert the

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attorney-client privilege, the attorney work product doctrine, or other privileges, or

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any Party’s right to contest any such assertion.

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14.

No action taken in accordance with this Protective Order shall be

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construed as a waiver of any claim or defense in the action or of any position as to

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discoverability or admissibility of evidence. Nor by its agreement or stipulation to

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entry of the attached Protective Order does any party make any admission that

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Materials that may be designated by any party as “Confidential” are, in fact,

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confidential. All parties reserve their right to challenge another party’s designation

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of Materials as confidential pursuant to paragraph 11 of this Stipulation.

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15.

The obligations imposed by this Protective Order shall survive the

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termination of this action. Within sixty (60) days following the expiration of the

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last period for appeal from any order issued in connection with this action, the
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parties may remove any Confidential Materials from the office of the Clerk of

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Court.

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16.

This Order may be modified by agreement of the parties, subject to

approval by the Court.

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Dated: February 19, 2013

_______________________________
JAY C. GANDHI
United States Magistrate Judge

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CV 12-09841-MMM(JCGX)
[PROPOSED] PROTECTIVE ORDER

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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TESSA OWEN, individually and on

) Case No. CV12-09841 MMM (JCGx)

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behalf of all others similarly situated,

)

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) WRITTEN ASSURANCE

Plaintiff,

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) REGARDING PROTECTIVE

v.

) ORDER

10 ’OCCITANE, INC., and DOES 1
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)

through 10,

) Hon. Margaret M. Morrow

Defendants.

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)

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I, ___________________________, declare that:

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1.

I reside at ________________________________________ in the city

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of __________________________, county _______________________, state of

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________________________.

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2.

I am currently employed by ____________________________ located

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at _____________________________________ and my current job title is

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__________________________.

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3.

I have read and believe I understand the terms of the Protective Order

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dated ___________, filed in Civil Action No. CV12-09841 MMM(JCGx), pending

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in the United States District Court for the Central District of California. I agree to

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comply with and be bound by the provisions of the Protective Order. I understand

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that any violation of the Protective Order may subject me to sanctions by the Court.

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4.

I shall not divulge any documents, or copies of documents, designated

“Confidential” obtained pursuant to such Protective Order, or the contents of such
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[PROPOSED] PROTECTIVE ORDER

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documents, to any person other than those specifically authorized by the Protective

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Order. I shall not copy or use such documents except for the purposes of this action

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and pursuant to the terms of the Protective Order.

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5.

As soon as practical, but no later than thirty (30) days after final

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termination of this action, I shall return to the attorney from whom I have received

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them any documents in my possession designated “Confidential” and all copies,

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excerpts, summaries, notes, digests, abstracts, and indices relating to such

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documents.

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6.

I submit myself to the jurisdiction of the United States District Court

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for the Central District of California for the purpose of enforcing or otherwise

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providing relief relating to the Protective Order, but not for the purpose of

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conferring jurisdiction over the party engaging me, or for whom I am employed, in

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any jurisdiction other than the Central District of California.

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I declare under penalty of perjury that the foregoing is true and correct.

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Executed on _______________

________________________________

(Date)

(Signature)

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[PROPOSED] PROTECTIVE ORDER