Linda Rubenstein v. The Neiman Marcus Group LLC et al

Filing 67

PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order 65 . (See Order for details) [Note Changes Made By The Court]. (bem)

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1 2 3 4 5 6 7 Michael Louis Kelly – State Bar No. 82063 mlk@kirtlandpackard.com Behram V. parekh – State Bar No. 180361 bvp@kirtlandpackard.com Joshua A. Fields – State Bar No. 242938 jf@kirtlandpackard.com NOTE: CHANGES MADE BY THE COURT KIRTLAND & PACKARD LLP 2041 Rosecrans Avenue, Third Floor El Segundo, CA 90245 Tel: (310) 536-1000 / Fax: (310) 536-1001 Counsel for Plaintiff and all others similarly situated 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 LINDA RUBENSTEIN, on behalf of herself and all others similarly situated, Plaintiffs, 12 15 2:14-CV-07155-SJO-JPR PROTECTIVE ORDER v. 13 14 Case No. THE NEIMAN MARCUS GROUP LLC, a Delaware Limited Liability Company, and DOES 1-50, inclusive, Defendants. 16 17 18 19 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production 20 of confidential, proprietary, or private information for which special protection from 21 public disclosure and from use for any purpose other than prosecuting this litigation 22 may be warranted. Accordingly, the parties hereby stipulate to and petition the Court 23 to enter the following Stipulated Protective Order. The parties acknowledge that this 24 Order does not confer blanket protections on all disclosures or responses to discovery 25 and that the protection it affords from public disclosure and use extends only to the 26 limited information or items that are entitled to confidential treatment under the 27 applicable legal principles. The parties further acknowledge, as set forth in Section 28 12.3, below, that this Stipulated Protective Order does not entitle them to file 500598519 v2 1 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures 2 that must be followed and the standards that will be applied when a party seeks 3 permission from the court to file material under seal. 4 2. 5 6 7 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of 8 how it is generated, stored or maintained) or tangible things that qualify for protection 9 under Federal Rule of Civil Procedure 26(c). 10 11 12 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or 13 items that it produces in disclosures or in responses to discovery as 14 “CONFIDENTIAL.” 15 2.5 Disclosure or Discovery Material: all items or information, regardless of 16 the medium or manner in which it is generated, stored, or maintained (including, 17 among other things, testimony, transcripts, and tangible things), that are produced or 18 generated in disclosures or responses to discovery in this matter. 19 2.6 Expert: a person with specialized knowledge or experience in a matter 20 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 21 expert witness or as a consultant in this action. 22 2.7 House Counsel: attorneys who are employees of a party to this action. 23 House Counsel does not include Outside Counsel of Record or any other outside 24 counsel. 25 26 27 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.9 28 Outside Counsel of Record: attorneys who are not employees of a party 2 500598519 v2 1 to this action but are retained to represent or advise a party to this action and have 2 appeared in this action on behalf of that party or are affiliated with a law firm which 3 has appeared on behalf of that party. 2.10 Party: any party to this action, including all of its officers, directors, 4 5 employees, consultants, retained experts, and Outside Counsel of Record (and their 6 support staffs). 2.11 Producing Party: a Party or Non-Party that produces Disclosure or 7 8 Discovery Material in this action. 2.12 Professional Vendors: persons or entities that provide litigation support 9 10 services (e.g., photocopying, videotaping, translating, preparing exhibits or 11 demonstrations, and organizing, storing, or retrieving data in any form or medium) 12 and their employees and subcontractors. 2.13 Protected Material: any Disclosure or Discovery Material that is 13 14 designated as “CONFIDENTIAL.” 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material 15 16 from a Producing Party. 17 3. 18 SCOPE The protections conferred by this Stipulation and Order cover not only 19 Protected Material (as defined above), but also (1) any information copied or extracted 20 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 21 Protected Material; and (3) any testimony, conversations, or presentations by Parties 22 or their Counsel that might reveal Protected Material. However, the protections 23 conferred by this Stipulation and Order do not cover the following information: (a) 24 any information that is in the public domain at the time of disclosure to a Receiving 25 Party or becomes part of the public domain after its disclosure to a Receiving Party as 26 a result of publication not involving a violation of this Order, including becoming part 27 of the public record through trial or otherwise; and (b) any information known to the 28 3 500598519 v2 1 Receiving Party prior to the disclosure or obtained by the Receiving Party after the 2 disclosure from a source who obtained the information lawfully and under no 3 obligation of confidentiality to the Designating Party. Any use of Protected Material at 4 trial shall be governed by a separate agreement or order. 5 4. DURATION Even after final disposition of this litigation, the confidentiality obligations 6 7 imposed by this Order shall remain in effect until a Designating Party agrees 8 otherwise in writing or a court order otherwise directs. Final disposition shall be 9 deemed to be the later of (1) dismissal of all claims and defenses in this action, with or 10 without prejudice; and (2) final judgment herein after the completion and exhaustion 11 of all appeals, rehearings, remands, trials, or reviews of this action, including the time 12 limits for filing any motions or applications for extension of time pursuant to 13 applicable law. 14 5. 15 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 16 Each Party or Non-Party that designates information or items for protection under this 17 Order must take care to limit any such designation to specific material that qualifies 18 under the appropriate standards. The Designating Party must designate for protection 19 only those parts of material, documents, items, or oral or written communications that 20 qualify – so that other portions of the material, documents, items, or communications 21 for which protection is not warranted are not swept unjustifiably within the ambit of 22 this Order. 23 Mass, indiscriminate, or routinized designations are prohibited. Designations 24 that are shown to be clearly unjustified or that have been made for an improper 25 purpose (e.g., to unnecessarily encumber or retard the case development process or to 26 impose unnecessary expenses and burdens on other parties) expose the Designating 27 Party to sanctions. 28 4 500598519 v2 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the mistaken designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in 5 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 7 under this Order must be clearly so designated before the material is disclosed or 8 produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (e.g., paper or electronic 11 documents, but excluding transcripts of depositions or other pretrial or trial 12 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each 13 page that contains protected material. If only a portion or portions of the material on a 14 page qualifies for protection, the Producing Party also must clearly identify the 15 protected portion(s) (e.g., by making appropriate markings in the margins). 16 A Party or Non-Party that makes original documents or materials available for 17 inspection need not designate them for protection until after the inspecting Party has 18 indicated which material it would like copied and produced. During the inspection and 19 before the designation, all of the material made available for inspection shall be 20 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 21 it wants copied and produced, the Producing Party must determine which documents, 22 or portions thereof, qualify for protection under this Order. Then, before producing the 23 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend 24 to each page that contains Protected Material. If only a portion or portions of the 25 material on a page qualifies for protection, the Producing Party also must clearly 26 identify the protected portion(s) (e.g., by making appropriate markings in the 27 margins). 28 5 500598519 v2 1 (b) for testimony given in deposition or in other discovery-related 2 proceedings, that the Designating Party identify on the record, before the close of the 3 deposition, hearing, or other proceeding, all protected testimony. (c) for information produced in some form other than documentary and for 4 5 any other tangible items, that the Producing Party affix in a prominent place on the 6 exterior of the container or containers in which the information or item is stored the 7 legend “CONFIDENTIAL.” If only a portion or portions of the information or item 8 warrant protection, the Producing Party, to the extent practicable, shall identify the 9 protected portion(s). 5.3 10 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive the 12 Designating Party’s right to secure protection under this Order for such material. 13 Upon timely correction of a designation, the Receiving Party must make reasonable 14 efforts to assure that the material is treated in accordance with the provisions of this 15 Order. 16 6. 17 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time consistent with the Court’s scheduling order. 19 Unless a prompt challenge to a Designating Party’s confidentiality designation is 20 necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 21 or a significant disruption or delay of the litigation, a Party does not waive its right to 22 challenge a confidentiality designation by electing not to mount a challenge promptly 23 after the original designation is disclosed. 24 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 25 resolution process by providing written notice of each designation it is challenging 26 and describing the basis for each challenge. To avoid ambiguity as to whether a 27 challenge has been made, the written notice must recite that the challenge to 28 6 500598519 v2 1 confidentiality is being made in accordance with this specific paragraph of the 2 Protective Order as well as Local Rule 37. The parties shall attempt to resolve each 3 challenge in good faith and must begin the process by conferring directly (in voice to 4 voice dialogue; other forms of communication are not sufficient) within 10 days of the 5 date of service of notice. In conferring, the Challenging Party must explain the basis 6 for its belief that the confidentiality designation was not proper and must give the 7 Designating Party an opportunity to review the designated material, to reconsider the 8 circumstances, and, if no change in designation is offered, to explain the basis for the 9 chosen designation. A Challenging Party may proceed to the next stage of the 10 challenge process only if it has engaged in this meet and confer process first or 11 establishes that the Designating Party is unwilling to participate in the meet and confer 12 process in a timely manner. 13 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without 14 court intervention, the Designating Party shall file and serve a motion to retain 15 confidentiality under Civil Local Rule 37 (and in compliance with Civil Local Rule 16 79-5, if applicable) within 21 days of the initial notice of challenge or within 14 days 17 of the parties agreeing that the meet and confer process will not resolve their dispute, 18 whichever is earlier. Each such motion must be accompanied by a competent 19 declaration affirming that the movant has complied with the meet and confer 20 requirements imposed in the preceding paragraph and Local Rule 37. Failure by the 21 Designating Party to make such a motion including the required declaration within 21 22 days (or 14 days, if applicable) shall automatically waive the confidentiality 23 designation for each challenged designation. In addition, the Challenging Party may 24 file a motion challenging a confidentiality designation at any time consistent with the 25 Court’s scheduling order if there is good cause for doing so, including a challenge to 26 the designation of a deposition transcript or any portions thereof. Any motion brought 27 pursuant to this provision must be accompanied by a competent declaration affirming 28 7 500598519 v2 1 that the movant has complied with the meet and confer requirements imposed by the 2 preceding paragraph and Rule 37. The burden of persuasion in any such challenge proceeding shall be on the 3 4 Designating Party. Frivolous challenges, and those made for an improper purpose 5 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 6 expose the Challenging Party to sanctions. Unless the Designating Party has waived 7 the confidentiality designation by failing to file a motion to retain confidentiality as 8 described above, all parties shall continue to afford the material in question the level 9 of protection to which it is entitled under the Producing Party’s designation until the 10 court rules on the challenge. 11 7. 12 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 13 disclosed or produced by another Party or by a Non-Party in connection with this case 14 only for prosecuting, defending, or attempting to settle this litigation. Such Protected 15 Material may be disclosed only to the categories of persons and under the conditions 16 described in this Order. When the litigation has been terminated, a Receiving Party 17 must comply with the provisions of section 13 below (FINAL DISPOSITION). 18 Protected Material must be stored and maintained by a Receiving Party at a 19 location and in a secure manner that ensures that access is limited to the persons 20 authorized under this Order. 21 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 22 otherwise ordered by the court or permitted in writing by the Designating Party, a 23 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 24 only to: (a) the Receiving Party’s Outside Counsel of Record in this action, as well 25 26 as employees of said Outside Counsel of Record to whom it is reasonably necessary to 27 disclose the information for this litigation and who have signed the “Acknowledgment 28 8 500598519 v2 1 and Agreement to Be Bound” that is attached hereto as Exhibit A; (b) the officers, directors, and employees (including House Counsel) of the 2 3 Receiving Party to whom disclosure is reasonably necessary for this litigation and 4 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom 5 6 disclosure is reasonably necessary for this litigation and who have signed the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (d) the court and its personnel; 9 (e) court reporters and their staff, professional jury or trial consultants, 10 mock jurors, and Professional Vendors to whom disclosure is reasonably necessary 11 for this litigation and who have signed the “Acknowledgment and Agreement to Be 12 Bound” (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is 13 14 reasonably necessary and who have signed the “Acknowledgment and Agreement to 15 Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered 16 by the court. Pages of transcribed deposition testimony or exhibits to depositions that 17 reveal Protected Material must be separately bound by the court reporter and may not 18 be disclosed to anyone except as permitted under this Stipulated Protective Order. (g) the author or recipient of a document containing the information or a 19 20 custodian or other person who otherwise possessed or knew the information. 21 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 22 OTHER LITIGATION 23 If a Party is served with a subpoena or a court order issued in other litigation 24 that compels disclosure of any information or items designated in this action as 25 “CONFIDENTIAL,” that Party must: 26 (a) promptly notify in writing the Designating Party. Such notification shall 27 include a copy of the subpoena or court order unless prohibited by law or court order; 28 9 500598519 v2 1 (b) promptly notify in writing the party who caused the subpoena or order to 2 issue in the other litigation that some or all of the material covered by the subpoena or 3 order is subject to this Protective Order. Such notification shall include a copy of this 4 Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued 5 6 by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 7 8 the subpoena or court order shall not produce any information designated in this 9 action as “CONFIDENTIAL” before a determination by the court from which the 10 subpoena or order issued, unless the Party has obtained the Designating Party’s 11 permission or a court so orders. The Designating Party shall bear the burden and 12 expense of seeking protection in that court of its confidential material – and nothing in 13 these provisions should be construed as authorizing or encouraging a Receiving Party 14 in this action to disobey a lawful directive from another court. 15 9. 16 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 17 (a) The terms of this Order are applicable to information produced by a 18 Non-Party in this action and designated as “CONFIDENTIAL.” Such information 19 produced by Non-Parties in connection with this litigation is protected by the 20 remedies and relief provided by this Order. Nothing in these provisions should be 21 construed as prohibiting a Non-Party from seeking additional protections. 22 (b) In the event that a Party is required, by a valid discovery request, to 23 produce a Non-Party’s confidential information in its possession, and the Party is 24 subject to an agreement with the Non-Party not to produce the Non-Party’s 25 confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party 26 27 that some or all of the information requested is subject to a confidentiality agreement 28 10 500598519 v2 1 with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated 2 3 Protective Order in this litigation, the relevant discovery request(s), and a reasonably 4 specific description of the information requested; and (3) make the information requested available for inspection by the Non- 5 6 Party. (c) If the Non-Party fails to object or seek a protective order from this court 7 8 within 14 days of receiving the notice and accompanying information, the Receiving 9 Party may produce the Non-Party’s confidential information responsive to the 10 discovery request. If the Non-Party timely seeks a protective order, the Receiving 11 Party shall not produce any information in its possession or control that is subject to 12 the confidentiality agreement with the Non-Party before a determination by the court. 13 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 14 of seeking protection in this court of its Protected Material. 15 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 16 17 Protected Material to any person or in any circumstance not authorized under this 18 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 19 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 20 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 21 persons to whom unauthorized disclosures were made of all the terms of this Order, 22 and (d) request such person or persons to execute the “Acknowledgment and 23 Agreement to Be Bound” that is attached hereto as Exhibit A. 24 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 25 PROTECTED 26 When a Producing Party gives notice to Receiving Parties that certain 27 MATERIAL inadvertently produced material is subject to a claim of privilege or other protection, 28 11 500598519 v2 1 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 2 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 3 may be established in an e-discovery order that provides for production without prior 4 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 5 parties reach an agreement on the effect of disclosure of a communication or 6 information covered by the attorney-client privilege or work product protection, the 7 parties may incorporate their agreement in the stipulated protective order submitted to 8 the court provided the court so allows. 9 12. 10 11 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 13 Protective Order no Party waives any right it otherwise would have to object to 14 disclosing or producing any information or item on any ground not addressed in this 15 Stipulated Protective Order. Similarly, no Party waives any right to object on any 16 ground to use in evidence of any of the material covered by this Protective Order. 17 12.3 Filing Protected Material. Without written permission from the 18 Designating Party or a court order secured after appropriate notice to all interested 19 persons, a Party may not file in the public record in this action any Protected Material. 20 A Party that seeks to file under seal any Protected Material must comply with Civil 21 Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court 22 order authorizing the sealing of the specific Protected Material at issue. Pursuant to 23 Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that 24 the Protected Material at issue is privileged, protectable as a trade secret, or otherwise 25 entitled to protection under the law. If a Receiving Party's request to file Protected 26 Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then 27 the Receiving Party may file the information in the public record pursuant to Civil 28 12 500598519 v2 1 Local Rule 79-5(e) unless otherwise instructed by the court. 2 13. 3 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4 4, each Receiving Party must return all Protected Material to the Producing Party or 5 destroy such material. As used in this subdivision, “all Protected Material” includes 6 all copies, abstracts, compilations, summaries, and any other format reproducing or 7 capturing any of the Protected Material. Whether the Protected Material is returned or 8 destroyed, the Receiving Party must submit a written certification to the Producing 9 Party (and, if not the same person or entity, to the Designating Party) by the 60 day 10 deadline that (1) identifies (by category, where appropriate) all the Protected Material 11 that was returned or destroyed and (2) affirms that the Receiving Party has not 12 retained any copies, abstracts, compilations, summaries or any other format 13 reproducing or capturing any of the Protected Material. Notwithstanding this 14 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 15 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 16 deposition and trial exhibits, expert reports, attorney work product, and consultant and 17 expert work product, even if such materials contain Protected Material. Any such 18 archival copies that contain or constitute Protected Material remain subject to this 19 Protective Order as set forth in Section 4 (DURATION). 20 21 PURSUANT TO STIPULATION, IT IS SO ORDERED. 22 23 DATED: September 1, 2017 24 ____________________________________ Jean P. Rosenbluth United States Magistrate Judge 25 26 27 28 13 500598519 v2 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 that 5 I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Central District of California on 7 [date] in the case of Linda Rubenstein v. The Neiman Marcus Group LLC, et al., Case 8 No. 2:14-CV-07155-SJO-JPR. I agree to comply with and to be bound by all the terms 9 of this Stipulated Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I 11 solemnly promise that I will not disclose in any manner any information or item that is 12 subject to this Stipulated Protective Order to any person or entity except in strict 13 compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Central District of California for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this 17 action. 18 I hereby appoint __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Stipulated Protective 22 Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 Printed name: _______________________________ 26 Signature: __________________________________ 27 28 14 500598519 v2

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