Office Depot Inc v. AIG Specialty Insurance Company

Filing 51

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Notice (Other) 50 . (See Order for details) (bem)

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KILPATRICK TOWNSEND & STOCKTON LLP
Brent W. Brougher (CA Bar No. 167791)
[e-mail]
1100 Peachtree Street NE, Suite 2800
Atlanta, GA 30309-4528
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
OFFICE DEPOT, INC.
CARLTON FIELDS JORDEN BURT. LLP
Mark A. Neubauer (73728)
[e-mail]
2000 Avenue of the Stars, Suite 530 North Tower
Los Angeles, California 90067-4707
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
AIG SPECIALTY INSURANCE COMPANY

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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OFFICE DEPOT, INC.,
Plaintiff,

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CASE NO. 2:15-cv-2416-SVW
(JPRx)

v.

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AIG SPECIALTY INSURANCE
COMPANY formerly known as
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE
COMPANY,

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Defendant.

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Assigned to Hon. Stephen V. Wilson;
Hon. Jean P. Rosenbluth (Mag. Judge)
STIPULATED PROTECTIVE
ORDER
Date: N/A (no hearing requested)

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Plaintiff Office Depot, Inc. and Defendant AIG Specialty Insurance
Company, Inc., hereby enter into the following stipulated Protective Order:

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PROTECTIVE ORDER

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

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

meanings:
a.

“Action” means the above-referenced lawsuit entitled Office

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Depot, Inc. v. AIG Specialty Ins. Co., Inc., Case N. 2:15-cv-

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2416-SVW (JPRx).

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b.

“Confidential” documents are documents designated pursuant to
paragraph 2. Confidential information includes, but is not

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limited to, nonpublic information such as financial data, trade

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secrets, and other operational, proprietary, or technological

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information that is not publicly available or known, consistent

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with the definition of “trade secrets” set forth in Cal. Civ. Code §

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3426.1(d), such as customer lists, contracts, and internal

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discussions of strategy relating to marketing, pricing, and

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contract negotiations. “Confidential” information also includes

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attorney-client privilege or work product information, to the

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extent a producing party elects to so produce it; however, the

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disclosure of any such information does not constitute any

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subject matter waiver or other waiver beyond that which is

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produced. “Confidential” documents also include those

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documents so designated and produced in the lawsuit titled State

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of California et al., ex rel. David Sherwin v. Office Depot, Inc.

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(“Sherwin”), however they may be obtained or produced in the

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instant case.

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c.

“Confidential – Attorneys’ Eyes Only” documents are

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documents designated pursuant to paragraph 5. “Confidential –

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Attorneys’ Eyes Only” documents also include those documents
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STIPULATED PROTECTIVE ORDER

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containing attorney-client privilege and work product

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information; however, the disclosure of any such information

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does not constitute any subject matter waiver or other waiver

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beyond that which is produced. “Confidential – Attorneys’ Eyes

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Only” documents also include those documents so designated

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and produced in the Sherwin lawsuit, however they may be

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obtained or produced in the instant case.
d.

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“Documents” means all originals and copies of records, books,
papers, documents, and tangible things, including but not limited

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to agreements, appointment books, bank checks, bank records,

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

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slips, charts, computer print-outs, contracts, correspondence,

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credit card statements, diaries, drafts, electronic or computerized

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data, e-mails, facsimiles, files, invoices, journals, legal pleadings,

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letters, licenses, memoranda, meta-data, notes, papers,

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promissory notes, receipts, statements, studies, surveys,

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telegrams, testimony (or summaries thereof), trading records,

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transcripts, voice mails, vouchers, and all communicative

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materials of any kind, and copies of all drafts, notes, or any

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preparatory material concerned with any of the foregoing in the

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possession, custody, or control of either Party or any of their

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respective agents, servants, or employees. The term

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

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encompass the contents of such Confidential materials,

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

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recapitulations thereof.

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2.

A Party may designate as Confidential any document or information

that it in good faith contends contains or discloses Confidential information.
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STIPULATED PROTECTIVE ORDER

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Consistent with the provisions in Paragraphs 10(a) – 10(c) below, only those

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specific portions of documents containing confidential information should be

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designated as such.

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3.

All documents designated as Confidential or any portion of a document

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so designated, along with the information contained therein, shall be used solely for

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the purpose of this Action, and no person receiving such documents or information

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shall, directly or indirectly, communicate, disclose, or transfer in any way the

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documents or their contents to any person other than those specified in paragraph 4.

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4.

Access to any Confidential document or information, or to any portion

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of a Confidential document so designated, by any individual other than the

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Producing Party shall be limited to:

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a.

the Parties;

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b.

the Court, including judicial employees, judges, magistrates,

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special masters, and all other personnel necessary to assist the

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Court in its function;

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c.

counsel of record for the Parties, including their partners,

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employees, and contractors to whom it is necessary that

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Confidential information be shown for purposes of this Action;

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d.

their personnel necessary to assist them in their functions;

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e.

the Parties’ agents, employees, directors, insurers, officers, and
representatives;

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Court reporters, stenographic reporters, videographers, and all of

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the Parties’ former agents, employees, directors, insurers,

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officers, and representatives who have executed the Agreement

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annexed hereto as Exhibit A;

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g.

outside independent persons who are retained by a Party or its

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attorneys to furnish technical or expert services, or to provide

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assistance as mock jurors or focus group members or the like,
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STIPULATED PROTECTIVE ORDER

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

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the Agreement annexed hereto as Exhibit A;
h.

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during their depositions, persons to whom disclosure is

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reasonably necessary, in the reasonable judgment of the

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examining Party, and who have signed the Agreement annexed

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hereto as Exhibit A; and
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copy or computer services or litigation support for the purpose of

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copying or indexing documents or providing litigation support,

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provided that all documents are retrieved by the Receiving Party
upon completion of service.

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5.

The Parties contend that some of the documents and information sought

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

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

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privileged/work product information protected by applicable law, the disclosure of

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which (to the Parties or otherwise) could substantially jeopardize the business of the

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

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cost, profit, and margin information and agreements with vendors. No other

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information shall be designated “Confidential – Attorneys’ Eyes Only.”

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Accordingly, except as provided in paragraph 6, all documents and information

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produced by either Party in this litigation which are labeled in good faith by the

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Producing Party’s counsel as “Confidential – Attorneys’ Eyes Only,” within the

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meaning of Fed. R. Civ. P. 26(c), shall be conspicuously marked and maintained

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confidentially and used solely for the purposes of this Action and not for any

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business, competitive, or other purpose, and shall not be disclosed by the Parties’

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respective counsel to anyone, except as otherwise provided for by the provisions of

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this Order.

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6.

Access to and disclosure of information and/or documents designated

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

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to:
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their respective staffs;

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trial counsel and/or in–house counsel for the Receiving Party and

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outside experts or outside consultants of the Receiving Party

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whose advice and consultation are being or will be used in

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connection with preparation for the litigation or the litigation of

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this case, subject to the limitations in paragraph 7;

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c.

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

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

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provided that such individual does not retain the “Confidential –

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

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subject to the limitations in paragraph 7;

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d.

the Court, including judicial employees, judges, magistrates,

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special masters, and all other personnel necessary to assist the

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Court in its function;

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e.

their personnel necessary to assist them in their functions; and

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Court reporters, stenographic reporters, videographers, and all of

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copy or computer services or litigation support for the purpose of

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copying or indexing documents or providing litigation support,

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provided that all documents are retrieved by the Receiving Party

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upon completion of service.

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g.

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

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documents or information designated as “Confidential –

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Attorneys’ Eyes Only” to the Parties, but they may provide the

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Parties with summaries of the documents or information; a Party

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will be subject to sanctions if it discloses any information

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designated as “Confidential – Attorneys’ Eyes Only” to anyone

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other its than trial or in-house counsel.
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STIPULATED PROTECTIVE ORDER

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7.

Individuals other than those set forth in Paragraph 6(a), (d), €, and (f) to

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whom such “Confidential – Attorneys’ Eyes Only” documents or information are

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

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

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8.

Third parties producing documents in the course of this Action may

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

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subject to the same protections and constraints as the Parties to the Action. A copy

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

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

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

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

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

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terms of the Protective Order.

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9.

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

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

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

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

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Attorneys’ Eyes Only” documents or information to any such person. Such notice

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shall provide a reasonable description of the outside independent person to whom

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disclosure is sought sufficient to permit objection to be made. If a Party objects in

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writing to such disclosure within 15 days after receipt of notice, no disclosure shall

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be made until the Party seeking disclosure obtains the approval of the Court or the

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objecting Party. Such disclosure shall not waive the right of any Party to object to

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discovery from the identified individual pursuant to Rule 26(b)(4)(B).

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10.

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

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

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

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conformity with this Order requires:
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STIPULATED PROTECTIVE ORDER

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a.

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

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documents, but excluding transcripts of depositions or other

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

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legend “Confidential” to each page that contains protected

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

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qualifies for protection, the Producing Party also must clearly

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

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

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original documents or materials available for inspection need not

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designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced.

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During the inspection and before the designation, all of the

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material made available for inspection shall be deemed

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Confidential. After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the

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specified documents, the Producing Party must affix the

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“Confidential” legend to each page that contains Protected

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

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qualifies for protection, the Producing Party also must clearly

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

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markings in the margins).

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b.

For testimony given in deposition or in other discovery-related

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proceedings, by the Designating Party identifying on the record,

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

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all protected testimony or by written notice to the other Party

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within 30 days of receipt of the transcript identifying all
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STIPULATED PROTECTIVE ORDER

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protected testimony. If only a portion or portions of the

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testimony qualifies as confidential, the Party must so indicate at

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the time of designation. Unless otherwise agreed, depositions

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shall be treated as “Confidential – Attorneys’ Eyes Only” during

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the 30-day period following receipt of the transcript. The

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

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encompasses Confidential information shall be taken only in the

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presence of persons who are qualified to have access to such

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information.
c.

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For information produced in some form other than documentary

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

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a prominent place on the exterior of the container or containers

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in which the information or item is stored the legend

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“Confidential.” If only a portion or portions of the information

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or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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11.

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

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

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

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other documents memorializing such proceedings, except by agreement of the

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

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

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

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

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

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

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

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

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CONTAINS CONFIDENTIAL [– ATTORNEYS’ EYES ONLY]

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INFORMATION SUBJECT TO A PROTECTIVE ORDER. TO BE

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OPENED ONLY BY OR AS DIRECTED BY THE COURT OR BY

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WRITTEN AGREEMENT OF THE PARTIES.

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12.

Under no circumstances shall a Party’s inadvertent failure to designate

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Confidential material as such (whether written discovery responses, documents, or

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testimony) be deemed a waiver of said protection. Any Party who inadvertently

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fails to identify documents as Confidential or “Confidential – Attorneys’ Eyes

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Only” shall promptly, upon discovery of its oversight, provide written notice of the

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error and substitute appropriately designated documents. Any Party receiving such

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inadvertently unmarked or improperly designated documents shall retrieve such

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documents from persons not entitled to receive those documents and, upon receipt

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of the substitute documents, shall return or destroy the improperly designated

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documents within 10 days of receiving such a written request.

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13.

Any Party who, through inadvertence, produces documents or

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information that are privileged or otherwise immune from discovery shall, promptly

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upon discovery of such inadvertent disclosure, so advise the Receiving Party in

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

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

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

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

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

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

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protection is inadvertently produced during discovery in this proceeding, such

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

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protection by the asserting party.

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14.

Without written permission from the Designating Party or a court order

secured after appropriate notice to all interested persons, a Party may not file in the
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STIPULATED PROTECTIVE ORDER

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public record in this Action any Protected Material. Pursuant to Local Rule 79-5,

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Protected Material may only be filed under seal pursuant to a court order authorizing

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

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motion to seal, in which case such material may be filed in the public record. If a

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Receiving Party seeks to file under seal any Protected Material, the Receiving Party

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

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Parties’ agreement, shall have seven (7) days to file a response, to give the

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Designating Party an opportunity further to explain the basis for the Confidentiality

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designation.

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15.

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

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

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

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

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

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statement:

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“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER.”

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

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party to this lawsuit may request that the Court place the filing under seal.
Whenever the Court grants a party permission to file an item under seal, a

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

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

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

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

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

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redacted documents shall be filed simultaneously.

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16.

In the event disclosure of information or documents covered by this

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

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

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

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

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notify the Producing Party and provide the Producing Party an opportunity to take

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appropriate measures to protect against the disclosure.

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17.

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

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

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

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

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

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

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

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

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

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

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Federal Rules of Civil Procedure.

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18.

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

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

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

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substantial unfairness, unnecessary economic burdens, or a significant disruption or

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

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

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designation is disclosed. All challenges to confidentiality must be undertaken

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

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a.

The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is

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challenging and describing the basis for each challenge. To

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avoid ambiguity as to whether a challenge has been made, the

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written notice must recite that the challenge to confidentiality is
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STIPULATED PROTECTIVE ORDER

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being made in accordance with this specific paragraph of the

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Protective Order as well as pursuant to Local Rule 37. The

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Parties shall attempt to resolve each challenge in good faith and

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

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

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conferring, the Challenging Party must explain the basis for its

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belief that the confidentiality designation was not proper and

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must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no

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change in designation is offered, to explain the basis for the

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chosen designation. A Challenging Party may proceed to the

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next stage of the challenge process only if it has engaged in this

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meet and confer process first or establishes that the Designating

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Party is unwilling to participate in the meet and confer process in

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a timely manner.
b.

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If the Parties cannot resolve a challenge without court

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intervention, the Parties shall file and serve a joint stipulation on

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behalf of both Parties in compliance with Local Rule 37. Each

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such motion must be accompanied by a competent declaration

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affirming that the Parties have complied with the meet and

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confer requirements of Local Rule 37-1.
c.

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be on the Designating Party.

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The burden of persuasion in any such challenge proceeding shall

19.

Within 45 days of final termination (upon the Parties’ execution of a

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release and settlement of their claims and/or the issuance of a final non-appealable

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Order) of this litigation, and the final resolution of any other claims arising out of or

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relating to the subject matter of the litigation, unless the Parties otherwise agree,

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each Party shall assemble all documents or other materials designated as
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STIPULATED PROTECTIVE ORDER

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“CONFIDENTIAL” hereunder that were produced to it, including all copies thereof,

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and at its option, make available all such documents or materials to the producing

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party, have them destroyed, or maintain such documents as confidential documents

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subject to the continuing obligations of this Agreement. As to those materials

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containing “CONFIDENTIAL” material, which constitute counsel’s work product

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or counsel’s file copies of materials served in this matter or submitted to the Court

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in connection with this litigation, counsel may retain such materials provided that

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counsel otherwise complies with this Protective Order with respect to such

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materials. Counsel for any party shall, if requested by counsel for another party,

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certify that the terms of this paragraph have been complied with to the best of his or

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her knowledge and belief.

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20.

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

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

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from seeking such further provisions enhancing or limiting confidentiality as may be

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appropriate.

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21.

No action taken in accordance with the Protective Order shall be

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

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discoverability or admissibility of evidence.

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22.

This Order shall survive the termination of this litigation.

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23.

The Parties have good cause for stipulating to confidential treatment of

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these documents. The CONFIDENTIAL designation shall be limited to information

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

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trade secrets and other operational, proprietary, or technological information relating

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to the Parties’ business. The designation of CONFIDENTIAL—ATTORNEYS’

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EYES ONLY shall be limited to documents which are or contain trade secrets or

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highly confidential business information protected by applicable law, the disclosure

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of which (to the Parties or otherwise) could substantially jeopardize the business of

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the Producing Party and its competitive position in the marketplace, or which
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STIPULATED PROTECTIVE ORDER

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arguably consists of attorney-client privileged or work product information. Trade

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secrets shall be defined consistently with California law as information of

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“independent economic value, actual or potential, from not being generally known

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to the public or to other persons who can obtain economic value from its disclosure

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or use” and that is the subject of reasonable efforts to maintain its secrecy. Cal. Civ.

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Code § 3426.1(d). The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it

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affords from public disclosure and use extends only to the limited information or

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items that are entitled to confidential treatment under the applicable legal principles.

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Both parties shall exercise restraint and care in designating material for protection

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and take care to limit any such designation to specific material that qualifies under

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the appropriate standards.

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AGREED AND STIPULATED THROUGH COUNSEL OF RECORD:
DATED: July 27, 2016

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KILPATRICK TOWNSEND & STOCKTON
LLP
By:

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/s/ Brent W. Brougher
Brent W. Brougher

Attorney for Plaintiff
OFFICE DEPOT, INC.

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DATED: July 27, 2016

CARLTON FIELDS JORDEN BURT, LLP

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By:

/s/ Mark A. Neubauer
Mark A. Neubauer

Attorney for Defendant
AIG SPECIALTY INSURANCE COMPANY

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STIPULATED PROTECTIVE ORDER

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Pursuant to Local Rule 5-4.3.4(a)(2)(i), I attest that all other signatories

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listed, and on whose behalf the filing is submitted, concur in the filing of this

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stipulation and have authorized the filing of this stipulation.

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DATED: July 27, 2016

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KILPATRICK TOWNSEND & STOCKTON
LLP

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By:

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Attorney for Plaintiff
OFFICE DEPOT, INC.

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/s/ Brent W. Brougher
Brent W. Brougher

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: July 27, 2016

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Hon. Jean P. Rosenbluth ___________
UNITED STATES MAGISTRATE JUDGE

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STIPULATED PROTECTIVE ORDER

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

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

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

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

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case of Office Depot, Inc. v. AIG Specialty Ins. Co., Case No.: 2:15-cv-02416 -SVW

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(JPRx). I agree to comply with and to be bound by all the terms of this Stipulated

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Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly

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promise that I will not disclose in any manner any information or item that is subject

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to this Stipulated Protective Order to any person or entity except in strict compliance

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with the provisions of this Order.

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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

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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Date: _______________________

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City and State where sworn and signed: _________________________

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Printed name: __________________________
[printed name]

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Signature: ______________________________
[signature]

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STIPULATED PROTECTIVE ORDER