State of California et al v. Office Depot Inc

Filing 139

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich, re: Joint Stipulation re: Discovery Motion, 114 . (mz)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

BIRD, MARELLA, BOXER, WOLPERT,
NESSIM, DROOKS & LINCENBERG, P.C.
Gary S. Lincenberg (SBN 123058)
Peter J. Shakow (SBN 198633)
1875 Century Park East, 23rd Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendant Office Depot, Inc.
ERIC R. HAVIAN (SBN 102295)
[e-mail]
STEPHEN HASEGAWA (SBN 198472)
[e-mail]
EDWARD H. ARENS (SBN 259155)
[e-mail]
PHILLIPS & COHEN LLP
100 The Embarcadero, Suite 300
San Francisco, California 94105
Tel: [phone]
Fax: [phone]
Lead counsel and attorneys for the County of
Santa Clara; the Cities of Azusa, Corona, Davis,
Los Angeles, and Santa Maria; San Joaquin
County Office of Education, Stanislaus County
Office of Education, Baldwin Park Unified
School District, Merced Union High School
District, Monrovia Unified School District,
Rowland Unified School District, and Stockton
Unified School District; and for Qui Tam
Plaintiff David Sherwin

19

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

20
21
22
23

STATE OF CALIFORNIA et al., ex
rel.
DAVID SHERWIN,

24
25
26
27

Plaintiff,

Case No.: 2:12-cv-09952-FMO-AJWx
Hon. Andrew J. Wistrich
PROTECTIVE ORDER
Date: N/A (no hearing requested)

v.
OFFICE DEPOT, INC.,
Defendant.

28
1
PROTECTIVE ORDER

1
2
3
4

Pursuant to Fed. R. Civ. P. 26(c) trade secret or other confidential
information be disclosed only in designated ways:
1.

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

meanings:

5

a. “Action” means the above-referenced consolidated matter

6

entitled State of California et al., ex rel. David Sherwin v.

7

Office Depot, Inc., No. 12-CV-9952.

8

b. “Confidential” documents are documents designated pursuant

9

to paragraph 2. Confidential information includes, but is not

10

limited to, nonpublic information such as financial data, trade

11

secrets, and other operational, proprietary, or technological

12

information relating to Defendant’s business that is not publicly

13

available or known, consistent with the definition of “trade

14

secrets” set forth in Cal. Civ. Code § 3426.1(d), such as

15

customer lists, contracts, and internal discussions of strategy

16

relating to marketing, pricing, and contract negotiations.

17
18

c. “Confidential – Attorneys’ Eyes Only” documents are
documents designated pursuant to paragraph 5.

19

d. “Documents” means all originals and copies of records, books,

20

papers, documents, and tangible things, including but not

21

limited to agreements, appointment books, bank checks, bank

22

records, books, books of account, business records, calendars,

23

charge

24

correspondence,

25

electronic or computerized data, e-mails, facsimiles, files,

26

invoices, journals, legal pleadings, letters, licenses, memoranda,

27

meta-data, notes, papers, promissory notes, receipts, statements,

slips,

charts,
credit

computer
card

28
2
PROTECTIVE ORDER

print-outs,

statements,

contracts,

diaries,

drafts,

1

studies, surveys, telegrams, testimony (or summaries thereof),

2

trading records, transcripts, voice mails, vouchers, and all

3

communicative materials of any kind, and copies of all drafts,

4

notes, or any preparatory material concerned with any of the

5

foregoing in the possession, custody, or control of either Party

6

or any of their respective agents, servants, or employees. The

7

term “documents,” as used herein, shall also be understood to

8

encompass the contents of such Confidential materials,

9

summaries, or abstracts thereof, notes taken thereon, or like

10
11
12
13

recapitulations thereof.
2.

A Party may designate as Confidential any document that it in good

faith contends contains or discloses Confidential information.
3.

All documents designated as Confidential, along with the information

14

contained in the documents, shall be used solely for the purpose of this Action, and

15

no person receiving such documents shall, directly or indirectly, communicate,

16

disclose, or transfer in any way the documents or their contents to any person other

17

than those specified in paragraph 4.

18
19

4.

Access to any Confidential document by any individual other than the

Producing Party shall be limited to:

20

a. the Parties;

21

b. the Court, including judicial employees, judges, magistrates,

22

special masters, and all other personnel necessary to assist the

23

Court in its function;

24

c. counsel of record for the Parties, including their partners,

25

employees, and contractors to whom it is necessary that

26

Confidential information be shown for purposes of this Action;

27
28
3
PROTECTIVE ORDER

1

d. Court reporters, stenographic reporters, videographers, and all of

2

their personnel necessary to assist them in their functions;

3

e. Defendant’s agents, employees, directors, insurers, officers, and

4

representatives;

5

f. Defendant’s former agents, employees, directors, insurers, officers,

6

and representatives who have executed the Agreement annexed

7

hereto as Exhibit A;

8

g. outside independent persons who are retained by a Party or its

9

attorneys to furnish technical or expert services, or to provide

10

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

11

and/or to give testimony in this Action and who have executed the

12

Agreement annexed hereto as Exhibit A;

13

h. during their depositions, persons to whom disclosure is reasonably

14

necessary, in the reasonable judgment of the examining Party, and

15

who have signed the Agreement annexed hereto as Exhibit A; and

16

i. copy or computer services or litigation support for the purpose of

17

copying or indexing documents or providing litigation support,

18

provided that all documents are retrieved by the Receiving Party

19

upon completion of service.

20

5.

The Parties contend that some of the documents and information

21

sought in this litigation are confidential documents and information relating to the

22

business of the Parties, which are or contain trade secrets or highly confidential

23

business information protected by applicable law, the disclosure of which (to the

24

Parties or otherwise) could substantially jeopardize the business of the Producing

25

Party and its competitive position in the marketplace, such as internal cost, profit,

26

and margin information and agreements with vendors. No other information shall

27

be designated “Confidential – Attorneys’ Eyes Only.” Accordingly, except as

28
4
PROTECTIVE ORDER

1

provided in paragraph 6, all documents and information produced by either Party

2

in this litigation which are labeled in good faith by the Producing Party’s counsel

3

as “Confidential – Attorneys’ Eyes Only,” within the meaning of Fed. R. Civ. P.

4

26(c), shall be conspicuously marked and maintained confidentially and used

5

solely for the purposes of this Action and not for any business, competitive, or

6

other purpose, and shall not be disclosed by the Parties’ respective counsel to

7

anyone, and shall not be used or referenced for any purpose other than counsel’s

8

review and information consistent with the specific purposes of this Action, subject

9

to the provisions of this Order.

10

6.

Access to and disclosure of information and/or documents designated

11

as “Confidential – Attorneys’ Eyes Only” pursuant to paragraph 5 shall be limited

12

to:

13
14

a. trial counsel and/or in–house counsel for the Receiving Party and
their respective staffs;

15

b. outside experts or outside consultants of the Receiving Party

16

whose advice and consultation are being or will be used in

17

connection with preparation for the litigation or the litigation of

18

this case, subject to the limitations in paragraph 7;

19

c. a witness, deponent, or potential witness or deponent, and his/her

20

counsel, during the course of or in preparation for this litigation;

21

provided that such individual does not retain the “Confidential –

22

Attorneys’ Eyes Only” materials or any notes related to them,

23

subject to the limitations in paragraph 7;

24

d. the Court, including judicial employees, judges, magistrates,

25

special masters, and all other personnel necessary to assist the

26

Court in its function;

27
28
5
PROTECTIVE ORDER

1

e. Court reporters, stenographic reporters, videographers, and all of

2

their personnel necessary to assist them in their functions; and

3

f. copy or computer services or litigation support for the purpose of

4

copying or indexing documents or providing litigation support,

5

provided that all documents are retrieved by the Receiving Party

6

upon completion of service.

7

g. trial or in-house counsel for the Parties may not disclose any

8

documents or information designated as “Confidential – Attorneys’

9

Eyes Only” to the Parties, but they may provide the Parties with

10

summaries of the documents or information; a Party will be subject

11

to sanctions if it discloses any information designated as

12

“Confidential – Attorneys’ Eyes Only” to anyone other its than

13

trial or in-house counsel.

14

7.

Individuals other than those set forth in Paragraph 6(a), (d), (e), and

15

(f) to whom such “Confidential – Attorneys’ Eyes Only” documents or information

16

are shown, furnished, or otherwise disclosed, shall be first shown a copy of this

17

Order and shall sign the document in the form of Exhibit A hereto.

18

8.

Third parties producing documents in the course of this Action may

19

also designate documents as Confidential or “Confidential – Attorneys’ Eyes

20

Only” subject to the same protections and constraints as the Parties to the Action.

21

A copy of the Protective Order shall be served along with any subpoena served in

22

connection with this Action. All documents produced by such third parties shall be

23

treated as “Confidential – Attorneys’ Eyes Only” for a period of 15 days from the

24

date of their production, and during that period any Party may designate such

25

documents as Confidential or “Confidential – Attorneys’ Eyes Only” pursuant to

26

the terms of the Protective Order.

27
28
6
PROTECTIVE ORDER

1

9.

As to each person required to execute an Agreement in the form

2

attached as Exhibit A, and who is known or suspected to be an employee or agent

3

of, or consultant to, any competitor in the industry of a Party, opposing counsel

4

shall be notified at least 10 days prior to disclosure of Confidential or

5

“Confidential – Attorneys’ Eyes Only” documents or information to any such

6

person.

7

independent person to whom disclosure is sought sufficient to permit objection to

8

be made. If a Party objects in writing to such disclosure within 15 days after

9

receipt of notice, no disclosure shall be made until the Party seeking disclosure

10

obtains the approval of the Court or the objecting Party. Such disclosure shall not

11

waive the right of any Party to object to discovery from the identified individual

12

pursuant to Rule 26(b)(4)(B).

13

10.

Such notice shall provide a reasonable description of the outside

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

14

or ordered, disclosure or discovery material that qualifies for protection under this

15

Order must be clearly so designated, subject to paragraph 12. Designation in

16

conformity with this Order requires:

17

a. For information in documentary form (e.g., paper or electronic

18

documents, but excluding transcripts of depositions or other

19

pretrial or trial proceedings), that the Producing Party affix the

20

legend “Confidential” to each page that contains protected

21

material. If only a portion or portions of the material on a page

22

qualifies for protection, the Producing Party also must clearly

23

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

24

markings in the margins). A Party or non-party that makes original

25

documents or materials available for inspection need not designate

26

them for protection until after the inspecting Party has indicated

27

which material it would like copied and produced. During the

28
7
PROTECTIVE ORDER

1

inspection and before the designation, all of the material made

2

available for inspection shall be deemed Confidential. After the

3

inspecting Party has identified the documents it wants copied and

4

produced, the Producing Party must determine which documents,

5

or portions thereof, qualify for protection under this Order. Then,

6

before producing the specified documents, the Producing Party

7

must affix the “Confidential” legend to each page that contains

8

Protected Material. If only a portion or portions of the material on

9

a page qualifies for protection, the Producing Party also must

10

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

11

appropriate markings in the margins).

12

b. For testimony given in deposition or in other pretrial or trial

13

proceedings, by the Designating Party identifying on the record,

14

before the close of the deposition, hearing, or other proceeding, all

15

protected testimony or by written notice to the other Party within

16

30 days of receipt of the transcript identifying all protected

17

testimony. If only a portion or portions of the testimony qualifies

18

as confidential, the Party must so indicate at the time of

19

designation. Unless otherwise agreed, depositions shall be treated

20

as “Confidential – Attorneys’ Eyes Only” during the 30-day period

21

following receipt of the transcript. The deposition of any witness

22

(or any portion of such deposition) that encompasses Confidential

23

information shall be taken only in the presence of persons who are

24

qualified to have access to such information.

25

c. For information produced in some form other than documentary

26

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

27

prominent place on the exterior of the container or containers in

28
8
PROTECTIVE ORDER

1

which the information or item is stored the legend “Confidential.”

2

If only a portion or portions of the information or item warrant

3

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

4

identify the protected portion(s).

5

11.

Confidential or “Confidential – Attorneys’ Eyes Only” documents and

6

information used at depositions, hearings or other public or quasi–public

7

proceedings, other than the trial of this cause, shall not be attached to transcripts or

8

other documents memorializing such proceedings, except by agreement of the

9

Parties. Confidential and “Confidential – Attorneys’ Eyes Only” documents and

10

information shall not be appended to memoranda, briefs, or other documents or

11

pleadings which will be reviewed by persons other than the persons designated

12

herein or otherwise permitted access thereto under the terms of this Order.

13

Alternatively, Confidential and “Confidential – Attorneys’ Eyes Only” documents

14

and information may be attached to such transcripts, memoranda, pleadings, briefs

15

and the like provided that they shall be collectively maintained in an envelope or

16

other protective covering which bears on its front and back the following label:

17

CONTAINS CONFIDENTIAL [– ATTORNEYS’ EYES ONLY]

18

INFORMATION SUBJECT TO A PROTECTIVE ORDER. TO BE

19

OPENED ONLY BY OR AS DIRECTED BY THE COURT OR BY

20

WRITTEN AGREEMENT OF THE PARTIES.

21

12.

Under no circumstances shall a Party’s inadvertent failure to

22

designate Confidential material as such (whether written discovery responses,

23

documents, or testimony) be deemed a waiver of said protection. Any Party who

24

inadvertently fails to identify documents as Confidential or “Confidential –

25

Attorneys’ Eyes Only” shall promptly, upon discovery of its oversight, provide

26

written notice of the error and substitute appropriately designated documents. Any

27

Party receiving such inadvertently unmarked or improperly designated documents

28
9
PROTECTIVE ORDER

1

shall retrieve such documents from persons not entitled to receive those documents

2

and, upon receipt of the substitute documents, shall return or destroy the

3

improperly designated documents within 10 days of receiving such a written

4

request.

5

13.

Any Party who, through inadvertence, produces documents or

6

information that are privileged or otherwise immune from discovery shall,

7

promptly upon discovery of such inadvertent disclosure, so advise the Receiving

8

Party in writing and request that the documents be returned. The Receiving Party

9

shall return such inadvertently produced documents, including all copies, within 10

10

days of receiving such a written request. The Party returning such inadvertently

11

produced documents may thereafter seek re-production of any such documents

12

pursuant to applicable law. Pursuant to Federal Rule of Evidence 502(d) and (e),

13

the parties agree that if any material as to which a party claims privilege or other

14

protection is inadvertently produced during discovery in this proceeding, such

15

inadvertent production shall not be a waiver of any claim of privilege or other

16

protection by the asserting party.

17

14.

Without written permission from the Designating Party or a court

18

order secured after appropriate notice to all interested persons, a Party may not file

19

in the public record in this Action any Protected Material. Pursuant to Local Rule

20

79-5, Protected Material may only be filed under seal pursuant to a court order

21

authorizing the sealing of the specific Protected Material at issue, unless the court

22

denies the motion to seal, in which case such material may be filed in the public

23

record. If a Receiving Party seeks to file under seal any Protected Material, the

24

Receiving Party shall state in its motion to file under seal that the Designating

25

Party, pursuant to the Parties’ agreement, shall have seven (7) days to file a

26

response, to give the Designating Party an opportunity further to explain the basis

27

for the Confidentiality designation.

28
10
PROTECTIVE ORDER

1

15.

No items will be filed under seal without a prior application to, and

2

order from the judge presiding over the hearing or trial. Only when the judge

3

presiding over the hearing or trial permits filing an item or items under seal may

4

confidential material filed with the Court be filed in a sealed envelope or the

5

container marked on the outside with the caption of this action and the following

6

statement:

7

“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER.”

8

If any person fails to file protected documents or information under seal, any

9

party to this lawsuit may request that the Court place the filing under seal.

10

Whenever the Court grants a party permission to file an item under seal, a

11

duplicate disclosing all nonconfidential information shall be filed and made part of

12

the public record. The item may be redacted to eliminate confidential material

13

from the public document. The public document shall be titled to show that it

14

corresponds to an item filed under seal, e.g., “Redacted Copy of Sealed

15

Declaration of John Smith in Support of Motion for Summary Judgment.” The

16

sealed and redacted documents shall be filed simultaneously.

17

16.

In the event disclosure of information or documents covered by this

18

Order is sought by a non-party through any means that may legally require

19

production, such as through a subpoena, discovery in other litigation, or via a

20

request for public records pursuant to any applicable state or local law (“Third

21

Party Request”), the counsel and/or the Party receiving the Third Party Request

22

shall first notify the Producing Party and provide the Producing Party an

23

opportunity to take appropriate measures to protect against the disclosure. No

24

disclosure of information or documents covered by this Order shall be made to a

25

non-party through a Third Party Request absent agreement of the Producing Party

26

or court order compelling disclosure.

27
28
11
PROTECTIVE ORDER

1

17.

Acceptance by a Receiving Party of information, documents, or things

2

identified or marked as Confidential or “Confidential – Attorneys’ Eyes Only”

3

hereunder by the Producing Party shall not constitute a concession that such

4

information, documents or things in fact are or include protected material of such

5

disclosing Party. Nothing in this Order shall be deemed a waiver of any Party’s

6

right to object to production of any documents or other tangible things or answers

7

to interrogatories for lack of timeliness, relevance or materiality, or as a privileged

8

communication, or as trial preparation materials, or as not reasonably calculated to

9

lead to the discovery of admissible evidence. The existence of this Order must not

10

be used by either Party as a basis for discovery that is otherwise improper under

11

the Federal Rules of Civil Procedure.

12

18.

Any Party or non-party may challenge a designation of confidentiality

13

at any time prior to the commencement of trial. Unless a prompt challenge to a

14

Designating Party’s confidentiality designation is necessary to avoid foreseeable,

15

substantial unfairness, unnecessary economic burdens, or a significant disruption

16

or delay of the litigation, a Party does not waive its right to challenge a

17

confidentiality designation by electing not to mount a challenge promptly after the

18

original designation is disclosed. All challenges to confidentiality must be

19

undertaken pursuant to Local Rule 37 and this Court’s individual rules. The page

20

limit on supplemental memoranda relating to motions for declassification of

21

materials designated as Confidential or Highly Confidential or motions seeking

22

modification of the protective order is 30 pages.

23

a. The Challenging Party shall initiate the dispute resolution process

24

by providing written notice of each designation it is challenging

25

and describing the basis for each challenge. To avoid ambiguity as

26

to whether a challenge has been made, the written notice must

27

recite that the challenge to confidentiality is being made in

28
12
PROTECTIVE ORDER

1

accordance with this specific paragraph of the Protective Order.

2

The Parties shall attempt to resolve each challenge in good faith

3

and must begin the process by conferring directly (via telephone or

4

in person) within 10 days of the date of service of notice. In

5

conferring, the Challenging Party must explain the basis for its

6

belief that the confidentiality designation was not proper and must

7

give the Designating Party an opportunity to review the designated

8

material, to reconsider the circumstances, and, if no change in

9

designation is offered, to explain the basis for the chosen

10

designation. A Challenging Party may proceed to the next stage of

11

the challenge process only if it has engaged in this meet and confer

12

process first or establishes that the Designating Party is unwilling

13

to participate in the meet and confer process in a timely manner.

14

b. If the Parties cannot resolve a challenge without court intervention,

15

the Parties shall file and serve a joint stipulation on behalf of both

16

Parties in compliance with Local Rule 37. Each such motion must

17

be accompanied by a competent declaration affirming that the

18

Parties have complied with the meet and confer requirements of

19

Local Rule 37-1.

20

c. The burden of persuasion in any such challenge proceeding shall

21
22

be on the Designating Party.
19.

Within 60 days of the termination of this Action, including any

23

appeals, any and all documents and information designated by the opposing Party

24

as Confidential or “Confidential – Attorneys’ Eyes Only,” and any copies or

25

reproductions thereof, and all extracts and/or data taken from such documents,

26

shall be returned to counsel who produced them or certified by the receiving

27

counsel as destroyed.

28
13
PROTECTIVE ORDER

1

20.

Any Party may apply to the Court for a modification of the Protective

2

Order, and nothing in the Protective Order shall be construed to prevent a Party

3

from seeking such further provisions enhancing or limiting confidentiality as may

4

be appropriate.

5

21.

No action taken in accordance with the Protective Order shall be

6

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

7

discoverability or admissibility of evidence.

8

22.

This Order shall survive the termination of this litigation.

9

23.

The Parties have good cause for stipulating to confidential treatment

10

of these documents. The CONFIDENTIAL designation shall be limited to

11

information that, if disclosed publicly, could harm the Parties’ business including

12

financial data, trade secrets and other operational, proprietary, or technological

13

information relating to the Parties’ business. The designation of

14

CONFIDENTIAL—ATTORNEYS’ EYES ONLY shall be limited to documents

15

which are or contain trade secrets or highly confidential business information

16

protected by applicable law, the disclosure of which (to the Parties or otherwise)

17

could substantially jeopardize the business of the Producing Party and its

18

competitive position in the marketplace. Trade secrets shall be defined

19

consistently with California law as information of “independent economic value,

20

actual or potential, from not being generally known to the public or to other

21

persons who can obtain economic value from its disclosure or use” and that is the

22

subject of reasonable efforts to maintain its secrecy. Cal. Civ. Code § 3426.1(d).

23

The parties acknowledge that this Order does not confer blanket protections on all

24

disclosures or responses to discovery and that the protection it affords from public

25

disclosure and use extends only to the limited information or items that are entitled

26

to confidential treatment under the applicable legal principles. Both parties shall

27

exercise restraint and care in designating material for protection and take care to

28
14
PROTECTIVE ORDER

1

limit any such designation to specific material that qualifies under the appropriate

2

standards.

3
4
5
6
7
8

IT IS ORDERED.
Dated: July 29, 2013
/s/ Andrew J. Wistrich
________________________________
Hon. Andrew J. Wistrich
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

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

4

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

5

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

6

by the United States District Court for the Central District of California on [date]

7

in the case of State of California ex rel. Sherwin v. Office Depot, Inc., Case No.:

8

2:12-cv-09952-FMO-AJWx. I agree to comply with and to be bound by all the

9

terms of this Stipulated Protective Order and I understand and acknowledge that

10

failure to so comply could expose me to sanctions and punishment in the nature of

11

contempt. I solemnly promise that I will not disclose in any manner any

12

information or item that is subject to this Stipulated Protective Order to any person

13

or entity except in strict compliance with the provisions of this Order.

14

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

15

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

16

of this Stipulated Protective Order, even if such enforcement proceedings occur

17

after termination of this action.

18
19

Date: _________________________________

20

City and State where sworn and signed: _________________________________

21
22
23

Printed name: ______________________________
[printed name]

24
25
26

Signature: __________________________________
[signature]

27
28
16
PROTECTIVE ORDER