Tova Malik vs. Saks Fifth Avenue LLC et al.

Filing 43

PROTECTIVE ORDER by Magistrate Judge Victor B. Kenton re Stipulation for Protective Order 42 . Good cause appearing, the terms of this Protective Order are hereby adopted by the Court. (See Order for details) (rh)

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Amy P. Lally, SBN 198555
[e-mail]
Jennifer A. Ratner, SBN 205155
[e-mail]
Leah E. Abeles, SBN 275347
[e-mail]
Laura L. Richardson, SBN 288954
[e-mail]
SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000
Los Angeles, California 90013
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
SAKS FIFTH AVENUE LLC
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
TOVA MALIK, on behalf of herself and )
all others similarly situated,
)
)
Plaintiffs,
)
)
vs.
)
)
SAKS FIFTH AVENUE LLC, a
)
Massachusetts Limited Liability
)
Company, and DOES 1-50; inclusive,
)
)
Defendants.
)
)
)

Case No. 2:14-cv-07600-SVW-VBK
Assigned to: Hon. Stephen V. Wilson
DISCOVERY MATTER
JOINT STIPULATION FOR
PROTECTIVE ORDER AND
[PROPOSED] ORDER
Before Magistrate Judge Victor B.
Kenton

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JOINT STIPULATION FOR PROTECTIVE ORDER AND [PROPOSED] ORDER

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STIPULATION
WHEREAS, Saks Fifth Avenue LLC (“Defendant”) and Tova Malik
(“Plaintiff”) are parties (“Parties”) in the above-captioned case which has been
assigned to the Honorable Stephen V. Wilson (the “Litigation”); and
WHEREAS, the Parties desire to enter into a joint protective order,
The Parties hereby STIPULATE as follows:
1.

Any Party exchanging information in the Litigation, whether in the

course of discovery or otherwise, who deems the information to be confidential,
protected by the right of privacy, confidential, proprietary, or trade secret information
(hereinafter referred to “Protected Information”) may designate, disclose and protect
such Protected Information pursuant to this Joint Protective Order (“Order”).
2.

Any person or entity that chooses to designate documents and

information as Protected Information (“Designating Party”) shall designate each such
item as “Confidential Information.” The designation “Confidential Information” shall
be used to designate only those specific documents and information the Designating
Party maintains are confidential, proprietary or that constitute or reveal a trade secret,
and that the Designating Party’s counsel believes in good faith are protected by the
law from disclosure.
3.

Any documents produced pursuant to this Order shall be stamped on the

first page of the document and on every page of the document that is subject to this
Order with the legend “CONFIDENTIAL INFORMATION FOR USE ONLY IN
MALIK V. SAKS FIFTH AVENUE LLC, ET AL.” or substantially similar language
that at a minimum incorporates the word “confidential,” and with consecutive bates
numbers, so as to identify all documents that pertain to this Order.
4.

In response to written discovery requests, the Designating Party may

disclose and produce Protected Information as follows:

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JOINT STIPULATION FOR PROTECTIVE ORDER AND [PROPOSED] ORDER

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a.

contained within the Interrogatory response in the language and manner
provided in Paragraph 3 above.

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b.

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Requests for Production of Documents: Producing documents that

contain Protected Information in the manner provided in Paragraph 3 above.

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Interrogatories: Clearly designating Protected Information

c.

Requests for Admissions: Clearly designating Protected

Information contained within the Request for Admission response in the
language and manner provided in Paragraph 3 above.
5.

The disclosure of Protected Information to any Party to this Litigation or

otherwise shall be made only as provided for herein. Except as provided herein or in a
subsequent court order, the Protected Information produced pursuant to this Order
shall be used only by the persons authorized under this Order and solely for the
purpose of preparing for and conducting the Litigation, or any related alternative
dispute resolution proceeding, and is not to be shown to, discussed with, or otherwise
disclosed to any other persons or entities, including parties to actions other than the
Litigation, whether or not such other actions are related to or coordinated with the
Litigation.
6.

Unless otherwise agreed upon in writing by the Parties or pursuant to

court order, Protected Information designated as “CONFIDENTIAL INFORMATION
FOR USE ONLY IN MALIK V. SAKS FIFTH AVENUE LLC, ET AL.” or
substantially similar language that at a minimum incorporates the word “confidential,”
shall not be disclosed to any person or entity other than the following:
a.

a Party to the Litigation, including without limitation in-house

counsel for a Party, whose counsel of record in this action has executed this
Order;

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b.

record in this Litigation or are otherwise assisting in the prosecution or defense
thereof;

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c.

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assisting in this Litigation, but only if (1) it is reasonable to disclose the
document or information to them for purposes of this Litigation; (2) they are not
Parties; (3) they are not officers, directors or employees of Parties, of affiliates
of Parties or of competitors of Parties; and (4) they have signed a declaration in
the form of Exhibit 1;
d.

disclose the document or information to them for purposes of this Litigation; (2)
they are not Parties; and (3) they are not officers, directors or employees of
Parties, of affiliates of Parties or of competitors of Parties;
e.

f.

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a court reporter or videographer retained by one or more of the

Parties for purposes of this Litigation; and

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the Court, including judicial employees and all other necessary

personnel, including court reporters employed by or retained by the Court;

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secretaries, paralegals and other clerical or support personnel

employed by or retained by counsel for a Party, but only if (1) it is reasonable to

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consultants, consulting experts and testifying experts and their

employees who have been engaged by counsel for a Party for the purpose of

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outside counsel for the respective Parties whose firm is counsel of

g.

the author, addressee or any other person or entity identified as a

recipient of specified Confidential Information who would otherwise be entitled
to receive it.
7.

No Party shall disclose or disseminate any Protected Information

produced by another Party pursuant to this Order to its experts or consultants until the
experts or consultants have executed a declaration in the form attached as Exhibit 1.
If any such expert or consultant is later designated pursuant to Rule 26(a) of the
Federal Rules of Civil Procedure, that expert’s declaration shall be placed in the

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expert’s file, and provided upon request by the Party whose Protected Information was
reviewed by the expert. Original declarations signed by experts not designated
pursuant to Rule 26(a) of the Federal Rules of Civil Procedure shall be maintained by
the Party that retained the expert and shall be submitted to the Court for in camera
review on request by the Court or by court order after the motion of any Party for such
a review, based on a showing of good cause, for an alleged breach of the Order.
8.

If a Party wishes to divulge Protected Information during a deposition at

which one or more persons are present to whom disclosure is not permitted under
Paragraph 6, then the following procedures shall be followed:
a.

If a Party anticipates that Protected Information will be divulged in

deposition, it shall provide notice to the Designating Party prior to questioning
at the deposition. The Party may not divulge Protected Information during the
deposition in the absence of an agreement with the Designating Party or a court
order permitting the disclosure, unless the deponent is shown on the document
as an author or recipient or a person who otherwise has been privy to the
Protected Information or where the deponent has been produced as a corporate
representative and/or person most knowledgeable by the Designating Party.
b.

Any questioning of the deponent that relates to any Protected

Information shall be conducted with only the following persons entitled to be
present: (1) the deponent, who is permitted access to the information under this
Order and, if applicable, who has executed a declaration in the form of Exhibit
1; (2) counsel representing the deponent and who has executed a declaration in
the form of Exhibit 1 or from whose firm an attorney has executed this Order;
(3) any designated representative of the Designating Party producing the
Protected Information; (4) counsel for the Party that noticed the deposition; (5)
the court reporter and videographer, who have executed a declaration in the
form of Exhibit 1; (6) any other person authorized to be present by prior order

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of the Court; (7) any other person authorized to be present by counsel to the
Designating Party; and (8) any counsel (or their staff) for other Parties,
assuming they, or an attorney from their firm, have executed this Order.
c.

Any portion of the deposition designated as Protected Information

shall be separately transcribed and shall be sealed and marked
“CONFIDENTIAL” by the court reporter in accordance with the designation
made by the Designating Party, and shall not be made part of the public
transcript. The sealed portions of the transcript may be provided only to the
persons identified in Paragraph 6.
d.

If documents containing Protected Information are used in a

deposition, they shall be marked pursuant to Paragraph 3 and shall be attached
only to portions of the transcript bearing the same “CONFIDENTIAL”
designation.
e.

Depositions, or portions of depositions, shall be deemed

conditionally confidential if so designated at the time of the deposition until
thirty (30) court days following receipt of the certified deposition transcript.
f.

Within thirty (30) court days of receipt of the certified deposition

transcript, any Party may mark as “CONFIDENTIAL” any portion of the
deposition transcript that Party believes contains such information. The Party
seeking to mark a deposition transcript, or portions of a deposition transcript, as
“CONFIDENTIAL” after the certified transcript has been prepared shall
promptly notify all Parties of its intent to do so, shall identify with specificity
the portion or portions to be designated, shall instruct the court reporter to
conform the deposition transcript to Paragraph 3, and shall bear all reasonable
charges billed by the court reporter in connection therewith.

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JOINT STIPULATION FOR PROTECTIVE ORDER AND [PROPOSED] ORDER

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g.

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transcript, the transcript shall be deemed non-confidential unless designated as

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“CONFIDENTIAL” by a Party.

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h.

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Information by promptly notifying in writing all other Parties and all persons

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who were present at the deposition of its intent to do so. The notice shall

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identify with specificity the portion or portions of the transcript that no longer

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shall be designated “CONFIDENTIAL” or vice-versa. The Party seeking to re-

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designate a deposition transcript, or portions of a deposition transcript, after the

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certified transcript has been prepared shall promptly notify all Parties of its

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intent to do so, shall identify with specificity the portion or portions to be re-

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designated, shall instruct the court reporter to conform the deposition transcript

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to Paragraph 3, and shall bear all reasonable charges billed by the court reporter

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in connection therewith.

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A Designating Party may de-designate or re-designate any portion

of the deposition transcript that the Party previously designated as Protected

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After thirty (30) court days of receipt of the certified deposition

9.

Any motions or pleadings or any other court filings that may reveal

Protected Information subject to this Order shall be submitted in accordance with
Local Rule 79-5 and shall be labeled as follows: “This Document Is Subject to a
Protective Order Issued by the Court and May Not Be Examined or Copied Except in
Compliance with that Order.” Nothing in this Order shall require a Party to move for
an order to seal Protected Information provided that the Party has given timely written
notice to the Designating Party at least five (5) court days before the filing to afford
the Designating Party the opportunity to make the showing required by Local Rule 795.1.
10.

Intentional disclosure of Protected Information in violation of this Order

may subject the violating Party and/or its attorney to sanctions for contempt of court,

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as well as any other statutory or common law remedies that may be available to the
Designating Party.
11.

Nothing in this Order shall (a) limit a person or entity’s right to seek or

object to discovery of and/or the disclosure of information or documents on any basis,
including but not limited to being Protected Information; (b) alter the burdens for
objecting to or obtaining discovery of Protected Information; or (c) affect the
admissibility or inadmissibility of any Protected Information that is not publicly
available.
12.

Nothing in this Order shall prevent a Designating Party from disclosing

its own Protected Information to any person or using that information for purposes of
this Litigation or otherwise. Whether such disclosure waives the protection of this
Order or results in the disclosed material becoming discoverable by other Parties, shall
be determined by the Court upon motion by any Party.
13.

If a Party inadvertently produces Protected Information without

designating it as such in accordance with Paragraph 3, that Party shall notify all
Parties to whom it provided the Protected Information of the proper designation of the
Protected Information as soon as practical after discovery of the error by the
Designating Party. The Designating Party shall provide all Parties to whom it
provided the undesignated Protected Information with a replacement copy of the
Protected Information marked in accordance with this Order. Upon receipt of the
designated copy: (a) the document or information shall be treated by the Parties who
received the document or information as if it had been timely designated as Protected
Information under this Order; (b) the erroneously designated Protected Information
shall be returned to the Designating Party or destroyed; and (c) the Parties who
received the Protected Information shall use reasonable efforts to identify any other
persons or entities to whom the information in question was given. It shall then be
the burden of all Parties to collect in good faith and return to the Designating Party or

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destroy all such Protected Information that they have provided to persons and entities
who would not have been entitled access thereto if the document or information had
been so designated at the outset. The inadvertent disclosure or inadvertent mismarking by a Designating Party of documents or information that the Party believes to
be confidential shall not automatically be deemed a waiver in whole or in part of any
Party’s claim of confidentiality, either as to the specific document or information
disclosed or as to any other document or information relating thereto or concerning
the same or related subject matter. However, any Party may seek a court order
establishing that the intentional disclosure of Protected Information by the
Designating Party to anyone other than the Designating Party and its counsel, without
being designated “CONFIDENTIAL,” constitutes a waiver of any claimed protection.
14.

Nothing in this Order shall be deemed to preclude a Party that has

designated a document or information as Protected Information from removing that
designation at any time. The Designating Party shall notify all parties in writing of its
intent to de-designate, upon which the document or information shall no longer be
treated as Protected Information under this Order.
15.

If a dispute arises regarding the designation of documents or information

as Protected Information, the following procedures shall be followed:
a.

In the event that a Party’s counsel believes, in good faith, that a

document or information produced or disclosed that has been designated as
Protected Information under the Order is not Confidential Information, such
counsel shall send counsel for the Designating Party a written request
specifically identifying the information or document (by bates-number) sought
to be disclosed and the reasons why said information or document should not be
so designated and/or subject to this Order. As soon as practicable and in any
case within ten (10) court days after receipt of such a written request, counsel
for the Designating Party shall meet and confer.

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b.

within the ten (10)-day period under Paragraph 15.a upon a satisfactory
resolution, the challenging Party shall send written notice to the Designating
Party identifying the information or documents still in dispute. The
Designating Party may file a motion seeking a protective order concerning such
information or documents that has previously been produced or disclosed under
the Order within ten (10) court days after receiving such notice (or any
additional period agreed to, in writing, by the requesting Party). If the
Designating Party fails to file a motion seeking a protective order within such
time period, the Designating Party shall be deemed to have consented to the
change in designation sought by the challenging Party.

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If the challenging Party and Designating Party are unable to agree

c.

If the Designating Party seeks a protective order pursuant to

Paragraph 15.b, no Party may disclose Protected Information in a manner
contrary to its designation until the Court has issued an order or ruling allowing
such disclosure, unless the Designating Party consents to disclosure prior to that
time, or as otherwise ordered by the Court.
16.

This Order in no way alters the law regarding the type of information that

may be deemed Protected Information nor the burdens for demonstrating
confidentiality or the right to discovery of Protected Information. Nothing in this
Order shall be deemed to preclude the Parties from requesting the Court, by noticed
motion, to modify the terms of the Order regarding the treatment of Protected
Information. This provision shall not be construed as an agreement by any Party to
such a modification, and, in the event that such modification is sought, the Parties
reserve the right to raise any and all arguments and to invoke any and all laws in
opposition to such modification. Any modification sought shall not apply unless and
until ordered by the Court.

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17.

Any Party who receives a subpoena or other process from a non-Party, or

an order to produce or disclose Protected Information, shall provide the Designating
Party with written notice thereof (which notice shall include a copy of the subpoena or
other process or order or other information necessary to reasonably inform the
Designating Party of the nature and scope of the subpoena, process or order) within
five (5) court days after receipt of said subpoena, process or order to enable that Party
to take whatever action it deems appropriate. The Designating Party may then seek a
court order that prohibits and/or limits the scope of any disclosure, and shall provide
notice of such application to the Party receiving the subpoena or other process or
order. After having provided written notice to the Designating Party as provided for
herein, the Party receiving the subpoena, process, or order may comply with the
subpoena, process, or order on the last day specified for compliance therewith, unless
the Designating Party has sought an order prohibiting and/or modifying the disclosure
sought, and shall comply with any subsequent order of court prohibiting and/or
limiting the scope of any disclosure. Any disputes arising under this Paragraph shall
be governed by the procedures specified in Paragraph 15 of this Protective Order.
18.

Within ninety (90) days after any written request, made after the

termination of this Litigation, including appeals, any Party to whom the Protected
Information was produced shall either: (a) return all such Protected Information and
all copies, portions, excerpts and extracts (excluding excerpts or extracts incorporated
into any privileged memoranda or attorney work product) to the Designating Party; or
(b) provide the Designating Party with a written certification that all Protected
Information provided to it, as well as all Protected Information it provided to others,
has, to the best of their knowledge, been destroyed.
19.

This Stipulation may be executed in counterparts, which taken together

shall be deemed to constitute one and the same document.

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20.

The Court shall retain jurisdiction following termination of this Litigation

for the purpose of enforcing any provisions of this Order.
21.

This Order may be amended or superseded by written agreement of the

Parties and order of the Court, or by order of the Court.
SO STIPULATED.
Dated: January _, 2015

SIDLEY AUSTIN LLP

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By:

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Amy P. Lally
Attorneys for Saks Fifth Avenue LLC

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Dated: January__, 2015

KIRTLAND & PACKARD LLP

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By:

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Behram V. Parekh
Attorneys for Tova Malik

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ORDER

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Good cause appearing, the terms of this Protective Order are hereby adopted by
the Court. IT IS SO ORDERED.

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Dated: January 28, 2015

By:

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________/s/_________________
Victor B. Kenton
United States Magistrate Judge

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EXHIBIT 1
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I _______________________ [print or type full name], declare under penalty

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of perjury that I have read in its entirety and understand the Protective Order, attached
hereto as Exhibit A, entered by the United States District Court for the Central District
of California in the action entitled Malik v. Saks Fifth Avenue LLC, et al., Case No.
2:14-cv-07600-SVW-VBK. On behalf of myself, and those in my organization,
______________________, I agree to comply with and to be bound by all the terms
of this 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 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

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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.

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Date:

________________, 2015

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City and State where sworn and signed:

_______________________

Signed:

_________________

_______________________

[Print Name]

[Signature]

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