Amy Friedman v. Guthy-Renker LLC

Filing 61

PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg re Stipulation for Protective Order 60 . The Court, having considered the parties Stipulation for Protective Order (the "Stipulatio") [Dkt. 60], good cause having been shown, hereby APPROVES and ENTERS this Protective Order. (See Order for details.) (mp)

1 LEWIS WAGNER, LLP
2 Dina M. Cox (admitted pro hac vice)
[e-mail]
3 501 Indiana Avenue, Suite 200
Indianapolis, IN 46202
4 Telephone: [phone]
Fax:
317-630-2799
5 LATHAM & WATKINS LLP
6 David J. Schindler, Bar # 130490
[e-mail]
7 Jonathan M. Jackson, Bar # 257554
[e-mail]
8 355 South Grand Avenue
Los Angeles, CA 90071
9 Telephone: [phone]
Fax:
213-891-8763
10 Attorneys for Defendant
11 Guthy-Renker LLC
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

14 AMY FRIEDMAN and JUDI
MILLER, on behalf of themselves
15 and all others similarly situated,
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Case No. 2:14-cv-06009-ODW-AGR
PROTECTIVE ORDER

Plaintiffs,
v.
GUTHY-RENKER LLC,
Defendant.

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PROTECTIVE ORDER

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The Court, having considered the parties Stipulation for Protective Order
(the “Stipulation”) [Dkt. 60], good cause having been shown, hereby APPROVES
and ENTERS this Protective Order.

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1.
1.1

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Purposes and Limitations. Discovery in this action is likely to involve

production of confidential, proprietary, or private information for which special
protection from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted. Accordingly, the parties hereby
stipulate to and petition the Court to enter the following Stipulated Protective
Order. The parties acknowledge that this Order does not confer blanket protections
on all disclosures or responses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal principles. The parties
further acknowledge, as set forth in Section 12.3, below, that this Stipulated
Protective Order does not entitle them to file confidential information under seal;
Local Rule 79-5 sets forth the procedures that must be followed and the standards
that will be applied when a Party seeks permission from the Court to file material
under seal. The parties also agree that nothing herein shall be construed as an
admission that any types of documents or information described herein must be
produced in this case.

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GENERAL PROVISIONS

1.2

Good Cause Statement. This action is likely to involve trade secrets

(as that term is defined by California Civil Code § 3426.1),1 customer and pricing
lists, and other valuable research, testing, formula, development, commercial,
financial, technical and/or proprietary information for which special protection

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Cal. Civil Code § 3426.1 provides that trade secret “means information, including a

27 formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives

independent economic value, actual or potential, from not being generally known to the public or

28 to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject
of efforts that are reasonable under the circumstances to maintain its secrecy.”

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PROTECTIVE ORDER

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from public disclosure and from use for any purpose other than prosecution of this
action is warranted. Such confidential and proprietary materials and information
consist of, among other things, business processes; non-public business or other
sensitive financial information, including, but not limited to, customer lists,
pricing, sales data, profit and/or loss information, sales, profit and/or loss
projections, profit and loss statements, or corporate financial statements; and also
include confidential research; business development, business marketing or other
sensitive commercial information; formulae and formulae development; testing
and test results; or other confidential research, development, or commercial
information (including information implicating privacy rights of third parties),
information otherwise generally unavailable to the public, or which may be
privileged or otherwise protected from disclosure under state or federal statutes,
Court rules, case decisions, or common law.
Defendant is one of the world’s largest direct marketing companies, with
distribution in more than 68 countries. The above information is not generally
known to the public or to other persons who could obtain economic value from its
disclosure or use, and Defendant uses reasonable efforts to maintain the secrecy of
this information. The disclosure of Defendant’s trade secrets, and confidential and
proprietary materials and information (as described in this paragraph and below) to
the public or Defendant’s competitors would cause harm to Defendant’s
competitive positions in the marketplace. In addition, discovery in this action is
also likely to call for materials containing medical records and other sensitive
personal information, the disclosure of which would be harmful to individual third
parties.
Accordingly, to expedite the flow of information, to facilitate the prompt
resolution of disputes over confidentiality of discovery materials, to adequately
protect information the parties are entitled to keep confidential, to ensure that the

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PROTECTIVE ORDER

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parties are permitted reasonably necessary uses of such material in preparation for
and in the conduct of trial, to address their handling at the end of the litigation, and
to serve the ends of justice, a protective order for such information is justified in
this matter. It is the intent of the parties that information will not be designated as
confidential for tactical reasons and that nothing be so designated without a good
faith belief that it has been maintained in a confidential, non-public manner, and
there is good cause why it should not be part of the public record of this case.
2.

DEFINITIONS

2.1

Action: the above-entitled proceeding, Case No. 2:14-cv-06009-

ODW-AGR.
2.2

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
2.3

"CONFIDENTIAL" Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
the Good Cause Statement.
2.4

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff and vendors provided that the vendors have signed the
"Acknowledgment and Agreement to Be Bound" (Exhibit A)).
2.5

Designated House Counsel: House Counsel who seek access to

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this
Action.
2.6

Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.”
2.7

Disclosure or Discovery Material: all items or information, regardless

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PROTECTIVE ORDER

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of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced
or generated in disclosures or responses to discovery in this matter.
2.8

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who (1) has been retained by a Party or its counsel to
serve as an expert witness or as a consultant in this action, (2) is not a past or
current employee of a Party or of a Party’s competitor, and (3) at the time of
retention, is not anticipated to become an employee of a Party or of a Party’s
competitor.
2.9

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items: extremely sensitive “CONFIDENTIAL Information or
Items,” disclosure of which to another Party or Non-Party would create a
substantial risk of serious harm that could not be avoided by less restrictive means.
Such Information and Items include, but are not limited to, the following nonpublic Information and Items: formulae for Wen® Cleansing Conditioner;
documents relating to the development and testing of formulae for Wen®
Cleansing Conditioner; financial data or information, including, but not limited to,
information concerning sales, revenue, profit margins, costs, and/or capital
expenditures; budgets, forecasts, and projections; Defendant’s proprietary
computer software; agreements with retailers, wholesalers, manufacturers,
distributors, and/or other third-parties relating to Wen® Cleansing Conditioner;
and/or marketing or other business strategy documents.
2.10 House Counsel: attorneys who are employees of a Party to this
Action. House Counsel does not include Outside Counsel of Record or any other
outside counsel.
2.11 Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.

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PROTECTIVE ORDER

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2.12 Outside Counsel of Record: attorneys who are not employees of a
Party to this Action but are retained to represent or advise a Party to this Action
and have appeared in this Action on behalf of that Party or are affiliated with a law
firm which has appeared on behalf of that Party, and includes support staff.
2.13 Party: any Party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.14 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.15 Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.16 Protected Material: any Disclosure or Discovery Material that is
designated as "CONFIDENTIAL," or as “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.”
2.17 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
3.

SCOPE

The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.
4.

DURATION

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PROTECTIVE ORDER

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Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a Court order otherwise directs. Final disposition shall be
deemed to be the later of (1) dismissal of all claims and defenses in this Action,
with or without prejudice; and (2) final judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
including the time limits for filing any motions or applications for extension of
time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL

5.1

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate
for protection only those parts of material, documents, items, or oral or written
communications that qualify so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to
impose unnecessary expenses and burdens on other parties) may expose the
Designating Party to sanctions.
If it comes to a Designating Party's attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in

this Order, or as otherwise stipulated or ordered, Disclosure or Discovery Material

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PROTECTIVE ORDER

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that qualifies for protection under this Order must be clearly so designated before
the material is disclosed or produced.
Designation in conformity with this Order requires:
(a)

Information in documentary form. The Producing Party shall affix

to any Disclosure or Discovery Material in documentary form (e.g., paper or
electronic documents, but excluding transcripts of depositions or other pretrial or
trial proceedings) the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY” to each page that contains protected material.
A Party or Non-Party that makes original documents or materials available
for inspection need not designate them for protection until after the inspecting
Party has indicated which material it would like copied and produced. During the
inspection and before the designation, all of the material made available for
inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.” After the inspecting Party has identified the documents it wants copied
and produced, the Producing Party must determine which documents, or portions
thereof, qualify for protection under this Order. Then, before producing the
specified documents, the Producing Party must affix the appropriate legend
(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY”) to each page that contains Protected Material. If only a portion or
portions of the material on a page qualifies for protection, the Producing Party also
must clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins) and must specify, for each portion, the level of protection
being asserted.
(b)

Depositions. Unless all parties agree on the record at the time the

deposition testimony is taken, all deposition testimony taken in this case shall be
treated as if it were designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” from the date of the deposition through and including thirty (30)

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PROTECTIVE ORDER

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days after receipt of the final deposition transcript. No later than the thirtieth day
after receipt of the final deposition transcript, a party may serve a Notice of
Designation to all parties of record as to specific portions of the transcript,
including exhibits, that are designated “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and thereafter those portions
identified in the Notice of Designation shall be protected under the terms of this
Order. The failure to serve a timely Notice of Designation shall waive any
designation of testimony taken in that deposition as confidential information,
unless (a) the parties agree to a different time for serving a Notice of Designation
or (b) the party seeking a late designation seeks and obtains relief from the
deadline from the Court for good cause shown Alternatively, a Designating Party
may specify, at the deposition or up to 30 days afterwards if that period is properly
invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
Transcripts containing Protected Material shall have an obvious legend on
the title page that the transcript contains Protected Material, and the title page shall
be followed by a list of all pages (including line numbers as appropriate) that have
been designated as Protected Material and the level of protection being asserted by
the Designating Party. The Designating Party shall inform the court reporter of
these requirements.
(c)

Other Material. For information produced in some form other than

documentary and for any other tangible items, the Producing Party shall affix in a
prominent place on the exterior of the container or containers in which the
information or item is stored the legend “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions
of the information or item warrant protection, the Producing Party, to the extent

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PROTECTIVE ORDER

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practicable, shall identify the protected portion(s) and specify the level of
protection being asserted.
5.3

Inadvertent Failures to Designate. If corrected within a reasonable

time of identifying an inadvertent failure to designate, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the
Designating Party's right to secure protection under this Order for such material.
Upon reasonably timely correction of a designation, the Receiving Party must
make reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1

Timing of Challenges. Any Party or Non-Party may challenge a

designation of confidentiality at any time that is consistent with the Court's
Scheduling Order. Unless a prompt challenge to a Designating Party’s
confidentiality designation is necessary to avoid foreseeable, substantial
unfairness, unnecessary economic burdens, or a significant disruption or delay of
the litigation, a Party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after the original
designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process consistent with Local Rule 37-1, et seq. The Challenging Party
shall initiate the dispute resolution process by providing written notice of each
designation it is challenging and describing the basis for each challenge. To avoid
ambiguity as to whether a challenge has been made, the written notice must recite
that the challenge to confidentiality is being made in accordance with this specific
paragraph of the Protective Order. The parties shall attempt to resolve each
challenge in good faith and must begin the process by conferring directly (in voice
to voice dialogue consistent with Local Rule 37-1, et seq.; other forms of

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PROTECTIVE ORDER

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communication are not sufficient) within 10 days of the date of service of notice.
In conferring, the Challenging Party must explain the basis for its belief that the
confidentiality designation was not proper and must give the Designating Party an
opportunity to review the designated material, to reconsider the circumstances,
and, if no change in designation is offered, to explain the basis for the chosen
designation. A Challenging Party may seek judicial assistance only if it has
engaged in this meet and confer process in good faith or establishes that the
Designating Party is unwilling to participate in the meet and confer process in a
timely manner.
6.3

Burden of Persuasion. The burden of persuasion in any challenge

proceeding shall be on the Designating Party. Frivolous challenges and those
made for an improper purpose (e.g., to harass or impose unnecessary expenses and
burdens on other parties) may expose the Challenging Party to sanctions. Unless
the Designating Party has waived or withdrawn the confidentiality designation, all
parties shall continue to afford the material in question the level of protection to
which it is entitled under the Producing Party’s designation until the Court rules on
the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL

7.1

Basic Principles. A Receiving Party may use Disclosure or Discovery

Material that is disclosed or produced by another Party or by a Non-Party in
connection with this Action only for prosecuting, defending, or attempting to settle
this Action. Protected Material may be disclosed only to the categories of persons
and under the conditions described in this Order. When the Action has been
terminated, a Receiving Party must comply with the provisions of section 13 below
(FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons

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PROTECTIVE ORDER

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authorized under this Order.
7.2

otherwise ordered by the Court or permitted in writing by the Designating Party, a
Receiving

(a)

(b)

(c)

the officers, directors, and employees (including House Counsel) of

Experts (as defined in this Order) of the Receiving Party to whom

the Court and its personnel;

(e)

court reporters and their staff;

(f)

professional jury or trial consultants, mock jurors, and Professional
Vendors to whom disclosure is reasonably necessary for this Action
and who have signed the "Acknowledgment and Agreement to Be

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Bound" (Exhibit A);
(g)

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the Receiving Party's Outside Counsel of Record in this Action, as

(d)

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designated

A);

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item

signed the "Acknowledgment and Agreement to Be Bound" (Exhibit

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or

disclosure is reasonably necessary for this Action and who have

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information

this Action;

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any

the Receiving Party to whom disclosure is reasonably necessary for

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disclose

reasonably necessary to disclose the information for this Action;

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may

well as employees of said Outside Counsel of Record to whom it is

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Party

"CONFIDENTIAL" only to:

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Disclosure of "CONFIDENTIAL" Information or Items. Unless

the custodian, author, or recipient of a document containing the
information;

(h)

during their depositions, witnesses, and attorneys for witnesses, in the
Action to whom disclosure is reasonably necessary provided: (1) the
deposing Party requests that the witness sign the form attached as
Exhibit A hereto; and (2) they will not be permitted to keep any

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PROTECTIVE ORDER

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confidential information unless they sign the "Acknowledgment and

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Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the

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Designating Party or ordered by the Court.; and
(i)

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mutually agreed upon by any of the parties engaged in settlement

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discussions.
7.3

in writing by the Designating Party, a Receiving Party may disclose any
information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” only to:
(a)

reasonably necessary to disclose the information for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound”

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that is attached hereto as Exhibit A;
(b)

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for

this

litigation,

(2)

who

have

signed

the

“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3)

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as to whom the procedures set forth in paragraph 7.4(a)(2), below,

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have been followed;
(c)

the court and its personnel;

(d)

court reporters and their staff, professional jury or trial consultants,

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and Professional Vendors to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Acknowledgment and

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Experts of the Receiving Party (1) to whom disclosure is reasonably
necessary

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the Receiving Party’s Outside Counsel of Record in this action, as
well as employees of said Outside Counsel of Record to whom it is

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” Information or Items. Unless otherwise ordered by the Court or permitted

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any mediator or settlement officer, and their supporting personnel,

Agreement to Be Bound” (Exhibit A);
(e)

the author or recipient of a document containing the information or a

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PROTECTIVE ORDER

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custodian or other person who otherwise possessed or knew the

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information; and
(f)

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involvement in competitive decision-making, (2) to whom disclosure

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is reasonably necessary for this litigation, (3) who has signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4)

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as to whom the procedures set forth in paragraph 7.4(a)(1), below,

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Designated House Counsel of the Receiving Party (1) who has no

have been followed.
7.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to
Designated House Counsel or Experts.
(a)(1) Unless otherwise ordered by the Court or agreed to in writing by the
Designating Party, a Party that seeks to disclose to Designated House
Counsel any information or item that has been designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to
paragraph 7.3(f) first must make a written request to the Designating
Party that (1) sets forth the full name of the Designated House
Counsel and the city and state of his or her residence, and (2)
describes the Designated House Counsel’s current and reasonably
foreseeable future primary job duties and responsibilities in sufficient
detail to determine if House Counsel is involved, or may become
involved, in any competitive decision-making.
(a)(2) Notwithstanding paragraph 7.4(a)(2)(i) below, unless otherwise
ordered by the Court or agreed to in writing by the Designating Party,
a Party that seeks to disclose to an Expert (as defined in this Order)
any information or item that has been designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY pursuant to

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PROTECTIVE ORDER

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paragraph 7.3(b) first must make a written request to the Designating

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Party that (1) identifies the general categories of “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that

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the Receiving Party seeks permission to disclose to the Expert, (2) sets

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forth the full name of the Expert and the city and state of his or her

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primary residence, (3) attaches a copy of the Expert’s current resume,

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(4) identifies the Expert’s current employer(s), (5) identifies each

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person or entity from whom the Expert has received compensation or

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funding for work in his or her areas of expertise or to whom the expert

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has provided professional services, including in connection with a

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litigation, at any time during the preceding five years,2 and (6)

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identifies (by name and number of the case, filing date, and location

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of Court) any litigation in connection with which the Expert has

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

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testimony at a deposition or trial, during the preceding five years.

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(i)

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If the time for designating any Expert has not expired and the
Expert has not been disclosed pursuant to Fed.R.Civ.P. 26 or

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pursuant to order of the Court; or if an Expert is a consulting

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expert, a Party does not have to specifically comply with

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provisions (2) – (6) of paragraph 7.4(2)(a) above. In such a

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situation, a party shall make a good faith attempt to disclose

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sufficient information to comply with the spirit of paragraph

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7.4(2)(a) above while protecting the identity of the consulting

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expert or non-disclosed Expert. Once an Expert is disclosed

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If the Expert believes any of this information is subject to a confidentiality obligation to a

27 third-party, then the Expert should provide whatever information the Expert believes can be
disclosed without violating any confidentiality agreements, and the Party seeking to disclose to

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engagement.

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PROTECTIVE ORDER

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pursuant to Fed.R.Civ.P. 26 and/or pursuant to order of the

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Court, the Expert must fully comply with paragraph 7.4(2)(a)

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above.
(b)

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the preceding respective paragraphs may disclose the subject

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Protected Material to the identified Designated House Counsel or

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Expert unless, within 5 business days of delivering the request, the

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Party receives a written objection from the Designating Party. Any

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such objection must set forth in detail the grounds on which it is

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A Party that makes a request and provides the information specified in

based.
(c)

A Party that receives a timely written objection must meet and confer
with the Designating Party (through direct voice to voice dialogue
consistent with Local Rule 37-1, et seq.; other forms of
communication are not sufficient) to try to resolve the matter by
agreement within seven days of the written objection. If no agreement
is reached, the Party seeking to make the disclosure to Designated
House Counsel or the Expert may file a motion as provided in Local
Rule 7 (and in compliance with Local Rule 79-5, if applicable)
seeking permission from the Court to do so. Any such motion must
describe the circumstances with specificity, set forth in detail the
reasons why the disclosure to Designated House Counsel or the
Expert is reasonably necessary, assess the risk of harm that the
disclosure would entail, and suggest any additional means that could
be used to reduce that risk. In addition, any such motion must be
accompanied by a competent declaration describing the parties’
efforts to resolve the matter by agreement (i.e., the extent and the
content of the meet and confer discussions) and setting forth the

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reasons advanced by the Designating Party for its refusal to approve

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the disclosure.

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In any such proceeding, the Party opposing disclosure to Designated House
Counsel or the Expert shall bear the burden of proving that the risk of harm that the
disclosure would entail (under the safeguards proposed) outweighs the Receiving
Party’s need to disclose the Protected Material to its Designated House Counsel or
Expert.

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8.

PRODUCED IN OTHER LITIGATION.

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If a Party is served with a subpoena or a court order issued in other litigation
or a demand for the production of documents in an administrative proceeding or
other similar action that compels disclosure of any information or items designated
in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” that Party must:

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(a)

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(b)

subpoena or order is subject to this Protective Order. Such notification shall
include a copy of this Stipulated Protective Order; and
(c)

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cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.3

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promptly notify in writing the Party who caused the subpoena or order

to issue in the other litigation that some or all of the material covered by the

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promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena, court order, or other demand;

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PROTECTED MATERIAL SUBPOENAED OR ORDERED

If the Designating Party timely seeks a protective order, the Party served
with the subpoena, court order, or other demand, shall not produce any information
designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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

28 this Protective Order and to afford the Designating Party in this case an opportunity to try to
protect its confidentiality interests in the Court from which the subpoena or order issued.

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ATTORNEYS’ EYES ONLY” before a determination by the court or tribunal
from which the subpoena or order issued, unless the Party has obtained the
Designating Party’s permission. The Designating Party shall bear the burden and
expense of seeking protection in that court of its confidential material – and
nothing in these provisions should be construed as authorizing or encouraging a
Receiving Party in this action to disobey a lawful directive from another court.
9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION
(a)

The terms of this Order are applicable to information produced by a

Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced
by Non-Parties in connection with this litigation is protected by the remedies and
relief provided by this Order. Nothing in these provisions should be construed as
prohibiting a Non-Party from seeking additional protections.
(b)

In the event that a Party is required, by a valid discovery request, to

produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
1.

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Party that some or all of the information requested is subject to

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a confidentiality agreement with a Non-Party;
2.

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request(s), and a reasonably specific description of the

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promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery

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promptly notify in writing the Requesting Party and the Non-

information requested; and
3.

make the information requested available for inspection by the
Non-Party.

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(c)

Court within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information responsive
to the discovery request. If the Non-Party timely seeks a protective order, the
Receiving Party shall not produce any information in its possession or control that
is subject to the confidentiality agreement with the Non-Party before a
determination by the Court.4 Absent a Court order to the contrary, the Non-Party
shall bear the burden and expense of seeking protection in this Court of its
Protected Material.

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10.

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If the Non-Party fails to object or seek a protective order from this

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has
disclosed Protected Material to any person or in any circumstance not authorized
under this Stipulated Protective Order, the Receiving Party must immediately (a)
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
the person or persons to whom unauthorized disclosures were made of all the terms
of this Order, and (d) request such person or persons to execute the
"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit
A.
11.

INADVERTENT PRODUCTION OF PRIVILEGED OR

OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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The purpose of this provision is to alert the interested parties to the existence of

28 confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its
confidentiality interests in this Court.

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PROTECTIVE ORDER

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whatever procedure may be established in an e-discovery order regarding the
inadvertent production of Disclosure or Discovery Material. Pursuant to Federal
Rule of Evidence 502(d) and (e), the inadvertent disclosure in this Action of
Disclosure or Discovery Material protected by the attorney-client privilege and/or
work product doctrine shall not operate as a waiver of the attorney-client privilege
and/or work product doctrine.
12.

MISCELLANEOUS

12.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in
this Stipulated Protective Order. Similarly, no Party waives any right to object on
any ground to use in evidence of any of the material covered by this Protective
Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Local Rule 79-5 and Local Rule 7. Protected
Material may only be filed under seal pursuant to a Court order authorizing the
sealing of the specific Protected Material at issue. In accordance with Local Rule
79-5.1, a proposed filing containing Protected Material shall be accompanied by an
application to file the papers or the portion thereof containing the Protected
Material (if such portion is segregable) under seal; and that the application shall be
directed to the judge to whom the papers are directed. If a Receiving Party desires
to file Protected Material, the Receiving Party shall confer with the Designating
Party in accordance with Local Rule 7 in order to afford the Designating Party an
opportunity to support its position to the court in support of filing the Protected
Material under seal. If a Party's request to file Protected Material under seal is

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PROTECTIVE ORDER

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denied by the Court, then the Receiving Party may file the information in the
public record unless otherwise instructed by the Court.
13.

FINAL DISPOSITION

After the final disposition of this Action, as defined in paragraph 4, within
60 days of a written request by the Designating Party, each Receiving Party must
use reasonable efforts to return all Protected Material to the Producing Party or
destroy such material. As used in this subdivision, "all Protected Material" includes
all copies, abstracts, compilations, summaries, and any other format reproducing or
capturing any of the Protected Material. The Receiving Party’s reasonable efforts
shall not require the return or destruction of confidential information from (i)
disaster recovery or business continuity backups, (ii) data stored in systemgenerated temporary folders or near-line storage; (iii) unstructured departed
employee data, and/or (iv) material that is subject to legal hold obligations or
comingled with other such material. Backup storage media will not be restored for
purposes of returning or certifying destruction of confidential information, but such
retained information shall continue to be treated in accordance with the Order.
Whether the Protected Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or
entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
category, where appropriate) all the Protected Material that was returned or
destroyed and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries or any other format reproducing or capturing
any of the Protected Material except as otherwise permitted in this provision.
Notwithstanding this provision, Counsel are entitled to retain an archival copy of
all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
work product, and consultant and expert work product, even if such materials

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contain Protected Material. Any such archival copies that contain or constitute
Protected Material remain subject to this Protective Order as set forth in Section 4
(DURATION).
14.

VIOLATIONS.

Any violation of this Order may be punished by any and all appropriate
measures including, without limitation, contempt proceedings and/or monetary
sanctions.
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: April 30, 2015

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13 ALICIA G. ROSENBERG
14 UNITED STATES MAGISTRATE JUDGE
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT

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TO BE BOUND

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I, __________________ [print or type full name], of _______________________
[print or type full address], declare under penalty of perjury that I have read in its
entirety and understand the Stipulated Protective Order that was issued by the
United States District Court for the Central District of California on __________ in
the case of Amy Friedman and Judi Miller, on behalf of themselves and all others
similarly situated v. Guthy-Renker LLC, Case No. 2:14-cv-06009-ODW-AGR. I
agree to comply with and to be bound by all the terms of this Stipulated Protective
Order and I understand and acknowledge that failure to so comply could expose
me to sanctions and punishment in the nature of contempt. I solemnly promise that
I will not disclose in any manner any information or item that is subject to this
Stipulated Protective Order to any person or entity except in strict compliance with
the provisions of this Order. I further agree to submit to the jurisdiction of the
United States District Court for the Central District of California for the purpose of
enforcing the terms of this Stipulated Protective Order, even if such enforcement
proceedings occur after termination of this action. I hereby appoint
______________________________ [print or type full name] of ____________
__________________ [print or type full address and telephone number] as my
California agent for service of process in connection with this action or any
proceedings related to enforcement of this Stipulated Protective Order.
Date:
City and State where sworn and signed:
Printed name:
Signature:

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