Charles Phillips v. Orchard Supply Hardware Stores Corporation, et al

Filing 24

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 23 (see attached) (jm)

1
2
3
4
5
6
7
8

Hunton & Williams LLP

UNITED STATES DISTRICT COURT

10
550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

9

CENTRAL DISTRICT OF CALIFORNIA

11

WESTERN DIVISION

12
13

CHARLES PHILLIPS,
Plaintiff,

14
15

Case No.: 2:15-CV-07858-JFW (FFMx)
Hon. John F. Walter
Magistrate Judge Frederick F. Mumm

v.
[PROPOSED] PROTECTIVE ORDER

16
17
18
19
20

ORCHARD SUPPLY HARDWARE
STORES CORPORATION, a Delaware
corporation, and DOES 1 through 25,
inclusive.
Defendants.

21
22
23
24
25
26
27
28
[PROPOSED] PROTECTIVE ORDER

1

[PROPOSED] ORDER

2

Pursuant to the stipulation by the Parties and good cause appearing therefor, the

3

Court HEREBY ENTERS the Parties’ STIPULATED PROTECTIVE ORDER, the

4

pertinent elements of which are as follows:

5

1.

6
7
8
9

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

10

DEFINITIONS
2.1

Action: This pending federal lawsuit, Charles Phillips v. Orchard Supply

Hardware Corporation et al., Case No.: 2:15-CV-07858-JFW (FFMx).
2.2

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

of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of

11

how it is generated, stored or maintained) or tangible things that qualify for protection

12

under Federal Rules of Civil Procedure 26(c), and as specified above in the Good

13

Cause Statement. “CONFIDENTIAL” Information or Items include:

14

(a)

Non-public information about Plaintiff or any other individuals,

15

including personnel records, evaluations, compensation information, medical

16

information or other personal and confidential information;

17
18
19

(b)

Information that is a “trade secret” as that term is defined in 18

U.S.C. § 1839; and/or
(c)

Information alleged in good faith by a Party to be subject to

20

protection under the Federal Rules of Evidence and/or information that is

21

confidential, of commercial value, and/or falls into one or more of the following

22

categories:

23
24
25
26
27
28

1.

Defendant’s policies and procedures for operating its

facilities;
2.

Documents that reflect the implementation of Defendant’s

policies and procedures for operating its facilities;
3.

Information that is protected against disclosure by a written

confidentiality agreement between a third party and Plaintiff or
1

[PROPOSED] PROTECTIVE ORDER

1

Defendant;

2

4.

3

financial statements or other sensitive business documents; and

4
5
6
7

Business plans, models, marketing analyses, sales and

5.
2.4

Personal or private information about Non-Parties.

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

their support staff).
2.5

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

8

items that it produces in disclosures or in responses to discovery as

9

“CONFIDENTIAL.”

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

10

2.6

Disclosure or Discovery Material: all items or information, regardless of

11

the medium or manner in which it is generated, stored, or maintained (including,

12

among other things, testimony, transcripts, and tangible things), that are produced or

13

generated in disclosures or responses to discovery in this matter.

14

2.7

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

15

pertinent to the litigation who has been retained by a Party or its counsel to serve as an

16

expert witness or as a consultant in this Action.

17

2.8

In-House Counsel:

attorneys who are employees of a Party to this

18

Action. In-House Counsel does not include Outside Counsel of Record or any other

19

outside counsel.

20

2.9

21

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.

22

2.10 Outside Counsel of Record: attorneys who are not employees of a party

23

to this Action but are retained to represent or advise a party to this Action and have

24

appeared in this Action on behalf of that party or are affiliated with a law firm which

25

has appeared on behalf of that party, and includes support staff.

26

2.11 Party: any party to this Action, including all of its officers, directors,

27

employees, consultants, retained experts, and Outside Counsel of Record (and their

28

support staffs).
2

[PROPOSED] PROTECTIVE ORDER

1
2

2.12 Producing Party:

a Party or Non-Party that produces Disclosure or

Discovery Material in this Action.

3

2.13 Professional Vendors: persons or entities that provide litigation support

4

services (e.g., photocopying, videotaping, translating, preparing exhibits or

5

demonstrations, and organizing, storing, or retrieving data in any form or medium)

6

and their employees and subcontractors.

7

2.14 Protected Material:

8

designated as “CONFIDENTIAL.”

9

2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

Hunton & Williams LLP

10
550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

any Disclosure or Discovery Material that is

from a Producing Party.

11

2.

SCOPE

12

The protections conferred by this Stipulation and Order cover not only

13

Protected Material (as defined above), but also (1) any information copied or

14

extracted from Protected Material; (2) all copies, excerpts, summaries, or

15

compilations of Protected Material; and (3) any testimony, conversations, or

16

presentations by Parties or their Counsel that might reveal Protected Material.

17

Any use of Protected Material at trial shall be governed by the orders of the

18

trial judge. This Order does not govern the use of Protected Material at trial.

19

3.

DURATION

20

Even after final disposition of this litigation, the confidentiality obligations

21

imposed by this Order shall remain in effect until a Designating Party agrees

22

otherwise in writing or a court order otherwise directs. Final disposition shall be

23

deemed to be the later of (1) dismissal of all claims and defenses in this Action, with

24

or without prejudice; and (2) final judgment herein after the completion and

25

exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

26

including the time limits for filing any motions or applications for extension of time

27

pursuant to applicable law.

28

///
3

[PROPOSED] PROTECTIVE ORDER

1
2

4.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

3

Each Party or Non-Party that designates information or items for protection under this

4

Order must take care to limit any such designation to specific material that qualifies

5

under the appropriate standards. The Designating Party must designate for protection

6

only those parts of material, documents, items, or oral or written communications that

7

qualify

8

communications

9

unjustifiably within the ambit of this Order.

so

that

other
for

portions

which

of

the

protection

is

material,
not

documents, items,

warranted

are

not

or

swept

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

10

Mass, indiscriminate, or routinized designations are prohibited. Designations

11

that are shown to be clearly unjustified or that have been made for an improper

12

purpose (e.g., to unnecessarily encumber the case development process or to impose

13

unnecessary expenses and burdens on other parties) may expose the Designating

14

Party to sanctions.

15

If it comes to a Designating Party’s attention that information or items that it

16

designated for protection do not qualify for protection, that Designating Party must

17

promptly notify all other Parties that it is withdrawing the inapplicable designation.

18

5.2

Manner and Timing of Designations. Except as otherwise provided in

19

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

20

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

21

under this Order must be clearly so designated before the material is disclosed or

22

produced.

23
24

Designation in conformity with this Order requires:
(a)

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

25

documents, but excluding transcripts of depositions or other pretrial or trial

26

proceedings), that the Producing Party affix, the legend “CONFIDENTIAL”

27

(hereinafter “CONFIDENTIAL legend”), to each page that contains protected

28

material. If only a portion or portions of the material on a page qualifies for
4

[PROPOSED] PROTECTIVE ORDER

1

protection, the Producing Party also must clearly identify the protected

2

portion(s) (e.g., by making appropriate markings in the margins).

inspection need not designate them for protection until after the inspecting

5

Party has indicated which documents it would like copied and produced.

6

During the inspection and before the designation, all of the material made

7

available for inspection shall be deemed

8

inspecting

9

produced, the Producing Party must determine which documents, or portions

10
Hunton & Williams LLP

A Party or Non-Party that makes original documents available for

4

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

3

thereof, qualify for protection under this Order. Then, before producing the

11

specified documents, the Producing Party must affix the “CONFIDENTIAL

12

legend” to each page that contains Protected Material. If only a portion or

13

portions of the material on a page qualifies for protection, the Producing Party

14

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

15

markings in the margins).

Party

has

identified

“CONFIDENTIAL.”

After

the

the documents it wants copied and

16

(b) for information produced in some form other than documentary

17

f o r m and for any other tangible items, that the Producing Party affix in a

18

prominent place on the exterior of the container or containers in which the

19

information is stored the legend “CONFIDENTIAL.” If only a portion or

20

portions of the information warrants protection, the Producing Party, to the

21

extent practicable, shall identify the protected portion(s).

22

(c) where discovery material described in (a) or (b) above has previously

23

been produced, the Designating Party shall make such designation by written

24

notice to all Parties that the document(s) should be treated as “Confidential,” by

25

identifying the Disclosures or Discovery Material to be designated with

26

particularity (i.e., by production numbers where available). Upon notice of the

27

designation, all parties (i) shall make no further disclosure of the Protected

28

Material, except as provided by this Protective Order; and (ii) if such Protected
5

[PROPOSED] PROTECTIVE ORDER

1

Material has already been disclosed to any person or in any circumstance not

2

authorized under this Protective Order, shall immediately inform the person or

3

persons to whom unauthorized disclosures were made of all the terms of this

4

Protective Order, and request such person or persons to execute the

5

“Acknowledgment and Agreement to Be Bound” (attached as Exhibit A).

6

(d) for testimony given in depositions, non-public hearing, or other non-

Discovery Material on the record, before the close of the proceeding. Any

9

Party also may designate testimony that is entitled to protection by notifying all

10
Hunton & Williams LLP

public proceeding, that the Designating Party identify the

8

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

7

Disclosure

or

Parties in writing within thirty (30) days of receipt of the transcript, of the

11

specific pages and lines of the transcript which should be treated as

12

“Confidential” thereafter. Each Party shall attach a copy of such written notice

13

or notices to the face of the transcript and each copy thereof in its possession,

14

custody or control. Unless otherwise indicated, all deposition transcripts shall

15

be treated as “Confidential” for a period of thirty (30) days after the receipt of

16

the transcript.

17

deponent’s right to review the transcript of his or her deposition under Federal

18

Rule of Civil Procedure 30(e)(1).

19

5.3

This preliminary treatment, however, shall not limit a

Inadvertent Failures to Designate. If timely corrected, an inadvertent

20

failure to designate qualified information or items does not, standing alone, waive

21

the Designating Party’s right to secure protection under this Order for such material.

22

Upon timely correction of a designation, the Receiving Party must make reasonable

23

efforts to assure that the material is treated in accordance with the provisions of this

24

Order.

25

5.

26

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges.

Any Party or Non-Party may challenge a

27

designation of confidentiality at any time that is consistent with the Court’s

28

Scheduling Order.
6

[PROPOSED] PROTECTIVE ORDER

1
2

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

3

6.3

The burden of persuasion in any such challenge proceeding shall be on

4

the Designating Party. Frivolous challenges, and those made for an improper

5

purpose (e.g., to harass or impose unnecessary expenses and burdens on other

6

parties) may expose the Challenging Party to sanctions. Unless the Designating Party

7

has waived or withdrawn the confidentiality designation, all parties shall continue to

8

afford the material in question the level of protection to which it is entitled under the

9

Producing Party’s designation until the Court rules on the challenge.

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

10
11

6.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

12

disclosed or produced by another Party or by a Non-Party in connection with this

13

Action only for prosecuting, defending, or attempting to settle this Action. Such

14

Protected Material may be disclosed only to the categories of persons and under the

15

conditions described in this Order. When the Action has been terminated, a

16

Receiving Party must comply with the provisions of section 13 below (FINAL

17

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

24

“CONFIDENTIAL” only to:

25

(a)

Party

may

disclose

any

information

or

item

designated

the Receiving Party and the Receiving Party’s Counsel in this

26

Action, as well as employees of said Counsel to whom it is reasonably

27

necessary to disclose the information for this Action;

28

(b) Experts (as defined in this Order) of the Receiving Party to whom
7

[PROPOSED] PROTECTIVE ORDER

1

disclosure is reasonably necessary for this Action and who have signed the

2

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

3

(c) the court and its personnel;

4

(d) court reporters and their staff;

5

(e) professional jury or trial consultants, mock jurors, and Professional

6

Vendors to whom disclosure is reasonably necessary for this Action and who

7

have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

8

(f) the author or recipient of a document containing the information or

9

a custodian or other person who otherwise possessed or knew the information;

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

10

(g) during their depositions, witnesses and attorneys for witnesses in the

11

Action to whom disclosure is reasonably necessary provided the deponent

12

agrees on the record to keep the information confidential or unless otherwise

13

agreed by the Designating Party or ordered by the court. Pages of transcribed

14

deposition testimony or exhibits to depositions that reveal Protected Material

15

may not be disclosed to anyone except as permitted under this Stipulated

16

Protective Order; and

17

(h) any mediator or settlement officer, and their supporting personnel,

18

mutually agreed upon by the Parties.

19

7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

20

OTHER LITIGATION

21

If a Party is served with a subpoena or a court order issued in other litigation

22

that compels disclosure of any information or items designated in this Action as

23

“CONFIDENTIAL,” that Party must:

24
25

(a)

promptly notify in writing the Designating Party. Such

notification shall include a copy of the subpoena or court order;

26

(b) promptly notify in writing the party who caused the subpoena or

27

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

28
8

[PROPOSED] PROTECTIVE ORDER

1

covered by the subpoena or order is subject to this Protective Order. Such

2

notification shall include a copy of this Stipulated Protective Order; and

3

(c)

4

cooperate with respect to all reasonable procedures sought to be

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

with the subpoena or court order shall not produce any information designated

7

in this action as “CONFIDENTIAL” before a determination by the court from

8

which the subpoena or order issued, unless the Party has obtained the

9

Designating Party’s permission. The Designating Party shall bear the burden

10
Hunton & Williams LLP

If the Designating Party timely seeks a protective order, the Party served

6

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

5

and expense of seeking protection in court or other proceeding of its

11

confidential material and nothing in these provisions should be construed as

12

authorizing or encouraging a Receiving Party in this Action to disobey a

13

lawful directive from another court.

14

8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

15

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

16

Protected Material to any person or in any circumstance not authorized under this

17

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

18

writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

19

to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

20

persons to whom unauthorized disclosures were made of all the terms of this Order,

21

and (d) request such person or persons to execute the “Acknowledgment and

22

Agreement to Be Bound” that is attached hereto as Exhibit A.

23

9.

24

PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

25

When a Producing Party gives notice to Receiving Parties that certain

26

inadvertently produced material is subject to a claim of privilege or other protection,

27

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

28

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
9

[PROPOSED] PROTECTIVE ORDER

1

may be established in an e-discovery order that provides for production without prior

2

privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), this Stipulated

3

Protective Order, once signed by the Court, shall constitute an order that the privilege

4

or protection as to an inadvertently produced document is not waived by disclosure

5

connected with the litigation pending before the court and the disclosure is also not a

6

waiver in any other federal or state proceeding.

7

10.

8
9

MISCELLANEOUS
11.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

10

11.2 Right to Assert Other Objections. By stipulating to the entry of this

11

Protective Order no Party waives any right it otherwise would have to object to

12

disclosing or producing any information or item on any ground not addressed in this

13

Stipulated Protective Order. Similarly, no Party waives any right to object on any

14

ground to use in evidence of any of the material covered by this Protective Order.

15

11.3 Filing Protected Material. A Party that seeks to file under seal any

16

Protected Material must comply with Civil Local Rule 79-5. Protected Material may

17

only be filed under seal pursuant to a court order authorizing the sealing of the

18

specific Protected Material at issue. If a Party’s request to file Protected Material

19

under seal is denied by the court for a reason other than failure to comply with Civil

20

Local Rule 79-5, then the Receiving Party may file the information in the public

21

record unless otherwise instructed by the court.

22

11.

FINAL DISPOSITION

23

After the final disposition of this Action, as defined in paragraph 4, within 60

24

days of a written request by the Designating Party, each Receiving Party must return

25

all Protected Material to the Producing Party or destroy such material. As used in this

26

subdivision, “all Protected Material” includes all copies, abstracts, compilations,

27

summaries, and any other format reproducing or capturing any of the Protected

28

Material. Whether the Protected Material is returned or destroyed, the Receiving Party
10

[PROPOSED] PROTECTIVE ORDER

or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by

3

category, where appropriate) all the Protected Material that was returned or destroyed

4

and (2)affirms that the Receiving Party has not retained any copies, abstracts,

5

compilations, summaries or any other format reproducing or capturing any of the

6

Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

7

archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

8

legal memoranda, correspondence, deposition and trial exhibits, expert reports,

9

attorney work product, and consultant and expert work product, even if such materials

10
Hunton & Williams LLP

must submit a written certification to the Producing Party (and, if not the same person

2

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

1

contain Protected Material. Any such archival copies that contain or constitute

11

Protected Material remain subject to this Protective Order as set forth in Section 4

12

(DURATION).

13

12.

14

measures including, without limitation, contempt proceedings and/or monetary

15

sanctions.

16

Any violation of this Order may be punished by any and all appropriate

IT IS SO ORDERED

17
18
19

DATED: April 6, 2016

/S/ Frederick F. Mumm
UNITED STATES MAGISTRATE
JUDGE

20
21
22
23
24
25
26
27
28
11

[PROPOSED] PROTECTIVE ORDER