Cori Hill v. Bluestem Brands, Inc

Filing 24

PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Stipulation for Protective Order 23 (See order for details) (rh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 2:16-cv-04140-CAS-KS

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14 CORI HILL,
Plaintiff,

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STIPULATED PROTECTIVE
ORDER

16 v.
17 BLUESTEM BRANDS, INC. dba
FINGERHUT,
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Defendant.
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Complaint Filed: June 10, 2016
Trial:
December 12, 2017

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22 1.

INTRODUCTION

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A.

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Discovery in this action is likely to involve production of confidential,

PURPOSES AND LIMITATIONS

25 proprietary, or private information for which special protection from public disclosure
26 and from use for any purpose other than prosecuting this litigation may be warranted.
27 Accordingly, the parties hereby stipulate to and petition the Court to enter the
28 following Stipulated Protective Order. The parties acknowledge that this Order does
STIPULATED PROTECTIVE ORDER

1 not confer blanket protections on all disclosures or responses to discovery and that the
2 protection it affords from public disclosure and use extends only to the limited
3 information or items that are entitled to confidential treatment under the applicable
4 legal principles. The patties further acknowledge, as set forth in Section 12.3, below,
5 that this Stipulated Protective Order does not entitle them to file confidential
6 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
7 followed and the standards that will be applied when a party seeks permission from
8 the court to file material under seal.
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B.

GOOD CAUSE STATEMENT

This action is likely to involve defendant Bluestem Brands, Inc.’s commercial

11 and/or proprietary information, as well as Plaintiff Cori Hill’s personal identifying
12 information and use of a Bluestem Brands, Inc. credit account for which special
13 protection from public disclosure and from use for any purpose other than prosecution
14 of this action is warranted. Such confidential and proprietary materials and
15 information consist of, among other things, confidential financial information,
16 information regarding confidential business practices, or other confidential
17 commercial information (including information implicating privacy rights of third
18 parties), information otherwise generally unavailable to the public, or which may be
19 privileged or otherwise protected from disclosure under state or federal statutes, court
20 rules, case decisions, or common law. Accordingly, to expedite the flow of
21 information, to facilitate the prompt resolution of disputes over confidentiality of
22 discovery materials, to adequately protect information the parties are entitled to keep
23 confidential, to ensure that the parties are permitted reasonable necessary uses of such
24 material in preparation for and in the conduct of trial, to address their handling at the
25 end of the litigation, and serve the ends of justice, a protective order for such
26 information is justified in this matter. It is the intent of the parties that information
27 will not be designated as confidential for tactical reasons and that nothing be so
28 designated without a good faith belief that it has been maintained in a confidential,
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STIPULATED PROTECTIVE ORDER

1 non-public manner, and there is good cause why it should not be part of the public
2 record of this case.
3 2.

DEFINITIONS

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2.1

Action: this pending federal law suit.

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2.2

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

6 of information or items under this Order.
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2.3

“CONFIDENTIAL” Information or Items: information (regardless of

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

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

12 support staff).
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2.5

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

14 items that it produces in disclosures or in responses to discovery as
15 “CONFIDENTIAL.”
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2.6

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

17 the medium or manner in which it is generated, stored, or maintained (including,
18 among other things, testimony, transcripts, and tangible things), that are produced or
19 generated in disclosures or responses to discovery in this matter.
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2.7

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

21 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
22 expert witness or as a consultant in this Action.
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2.8

House Counsel: attorneys who are employees of a party to this Action.

24 House Counsel does not include Outside Counsel of Record or any other outside
25 counsel.
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2.9

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

27 other legal entity not named as a Party to this action.
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STIPULATED PROTECTIVE ORDER

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

2 to this Action but are retained to represent or advise a party to this Action and have
3 appeared in this Action on behalf of that party or are affiliated with a law firm which
4 has appeared on behalf of that party, and includes support staff.
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2.11 Party: any party to this Action, including all of its officers, directors,

6 employees, consultants, retained experts, and Outside Counsel of Record (and their
7 support staffs).
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2.12 Producing Party: a Party or Non-Party that produces Disclosure or

9 Discovery Material in this Action.
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2.13 Professional Vendors: persons or entities that provide litigation support

11 services (e.g., photocopying, videotaping, translating, preparing exhibits or
12 demonstrations, and organizing, storing, or retrieving data in any form or medium)
13 and their employees and subcontractors.
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2.14 Protected Material: any Disclosure or Discovery Material that is

15 designated as "CONFIDENTIAL."
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2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

17 from a Producing Party.
18 3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

20 Protected Material (as defined above), but also (1) any information copied or extracted
21 from Protected Material; (2) all copies, excerpts, summaries, or compilations of
22 Protected Material; and (3) any testimony, conversations, or presentations by Parties
23 or their Counsel that might reveal Protected Material.
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Any use of Protected Material at trial shall be governed by the orders of the trial

25 judge. This Order does not govern the use of Protected Material at trial.
26 4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

28 imposed by this Order shall remain in effect until a Designating Party agrees
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STIPULATED PROTECTIVE ORDER

1 otherwise in writing or a court order otherwise directs. Final disposition shall be
2 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
3 or without prejudice; and (2) final judgment herein after the completion and
4 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
5 including the time limits for filing any motions or applications for extension of time
6 pursuant to applicable law.
7 5.
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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

9 Each Party or Non-Party that designates information or items for protection under this
10 Order must take care to limit any such designation to specific material that qualifies
11 under the appropriate standards. The Designating Party must designate for protection
12 only those parts of material, documents, items, or oral or written communications that
13 qualify so that other portions of the material, documents, items, or communications
14 for which protection is not warranted are not swept unjustifiably within the ambit of
15 this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations

17 that are shown to be clearly unjustified or that have been made for an improper
18 purpose (e.g., to unnecessarily encumber the case development process or to impose
19 unnecessary expenses and burdens on other parties) may expose the Designating Party
20 to sanctions.
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If it comes to a Designating Party’s attention that information or items that it

22 designated for protection do not qualify for protection, that Designating Party must
23 promptly notify all other Parties that it is withdrawing the inapplicable designation.
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5.2

Manner and Timing of Designations. Except as otherwise provided in

25 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
26 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
27 under this Order must be clearly so designated before the material is disclosed or
28 produced.
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STIPULATED PROTECTIVE ORDER

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Designation in conformity with this Order requires:

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(a)

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

3 documents, but excluding transcripts of depositions or other pretrial or trial
4 proceedings), that the Producing Party affix at a minimum, the legend
5 "CONFIDENTIAL" (hereinafter "CONFIDENTIAL legend"), to each page that
6 contains protected material. If only a portion or portions of the material on a page
7 qualifies for protection, the Producing Party also must clearly identify the protected
8 portion(s) (e.g., by making appropriate markings in the margins).
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A Party or Non-Party that makes original documents available for

10 inspection need not designate them for protection until after the inspecting Party has
11 indicated which documents it would like copied and produced. During the inspection
12 and before the designation, all of the material made available for inspection shall be
13 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
14 it wants copied and produced, the Producing Party must determine which documents,
15 or portions thereof, qualify for protection under this Order. Then, before producing the
16 specified documents, the Producing Party must affix the “CONFIDENTIAL legend”
17 to each page that contains Protected Material. If only a portion or portions of the
18 material on a page qualifies for protection, the Producing Party also must clearly
19 identify the protected portion(s) (e.g., by making appropriate markings in the
20 margins).
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(b)

for testimony given in depositions that the Designating Party

22 identify the Disclosure or Discovery Material on the record, before the close of the
23 deposition all protected testimony.
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(c)

for information produced in some form other than documentary

25 and for any other tangible items, that the Producing Party affix in a prominent place
26 on the exterior of the container or containers in which the information is stored the
27 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants
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STIPULATED PROTECTIVE ORDER

1 protection, the Producing Party, to the extent practicable, shall identify the protected
2 portion(s).
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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

4 failure to designate qualified information or items does not, standing alone, waive the
5 Designating Party's right to secure protection under this Order for such material. Upon
6 timely correction of a designation, the Receiving Party must make reasonable efforts
7 to assure that the material is treated in accordance with the provisions of this Order.
8 6.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

10 designation of confidentiality at any time that is consistent with the Court's
11 Scheduling Order.
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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

13 resolution process under Local Rule 37.1 et seq.
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6.3

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

15 the Designating Party. Frivolous challenges, and those made for an improper purpose
16 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
17 expose the Challenging Party to sanctions. Unless the Designating Party has waived or
18 withdrawn the confidentiality designation, all parties shall continue to afford the
19 material in question the level of protection to which it is entitled under the Producing
20 Party’s designation until the Court rules on the challenge.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

23 disclosed or produced by another Party or by a Non-Party in connection with this
24 Action only for prosecuting, defending, or attempting to settle this Action. Such
25 Protected Material may be disclosed only to the categories of persons and under the
26 conditions described in this Order. When the Action has been terminated, a Receiving
27 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
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STIPULATED PROTECTIVE ORDER

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Protected Material must be stored and maintained by a Receiving Party at a

2 location and in a secure manner that ensures that access is limited to the persons
3 authorized under this Order.
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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

5 otherwise ordered by the court or permitted in writing by the Designating Party, a
6 Receiving Party may disclose any information or item designated “CONFIDENTIAL”
7 only to:
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(a)

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

9 well as employees of said Outside Counsel of Record to whom it is reasonably
10 necessary to disclose the information for this Action;
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(b)

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

12 of the Receiving Party to whom disclosure is reasonably necessary for this Action;
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(c)

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

14 disclosure is reasonably necessary for this Action and who have signed the
15 "Acknowledgment and Agreement to Be Bound" (Exhibit A);
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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

19 Vendors to whom disclosure is reasonably necessary for this Action and who have
20 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(g)

the author or recipient of a document containing the information or

22 a custodian or other person who otherwise possessed or knew the information;
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(h)

during their depositions, witnesses, and attorneys for witnesses, in

24 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
25 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they
26 will not be permitted to keep any confidential information unless they sign the
27 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
28 by the Designating Party or ordered by the court. Pages of transcribed deposition
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STIPULATED PROTECTIVE ORDER

1 testimony or exhibits to depositions that reveal Protected Material may be separately
2 bound by the court reporter and may not be disclosed to anyone except as permitted
3 under this Stipulated Protective Order; and
(i)

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any mediator or settlement officer, and their supporting personnel,

5 mutually agreed upon by any of the parties engaged in settlement discussions.
6 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

7 PRODUCED IN OTHER LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation

9 that compels disclosure of any information or items designated in this Action as
10 “CONFIDENTIAL,” that Party must:
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(a)

promptly notify in writing the Designating Party. Such notification shall

12 include a copy of the subpoena or court order;
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(b)

promptly notify in writing the party who caused the subpoena or order to

14 issue in the other litigation that some or all of the material covered by the subpoena or
15 order is subject to this Protective Order. Such notification shall include a copy of this
16 Stipulated Protective Order; and
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(c)

cooperate with respect to all reasonable procedures sought to be pursued

18 by the Designating Party whose Protected Material may be affected.
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If the Designating Party timely seeks a protective order, the Party served with

20 the subpoena or court order shall not produce any information designated in this
21 action as “CONFIDENTIAL” before a determination by the court from which the
22 subpoena or order issued, unless the Party has obtained the Designating Party’s
23 permission. The Designating Party shall bear the burden and expense of seeking
24 protection in that court of its confidential material and nothing in these provisions
25 should be construed as authorizing or encouraging a Receiving Party in this Action to
26 disobey a lawful directive from another court.
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STIPULATED PROTECTIVE ORDER

1 9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

2 PRODUCED IN THIS LITIGATION
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(a)

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

4 Party in this Action and designated as “CONFIDENTIAL.” Such information
5 produced by Non-Parties in connection with this litigation is protected by the
6 remedies and relief provided by this Order. Nothing in these provisions should be
7 construed as prohibiting a Non-Party from seeking additional protections.
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(b)

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

9 produce a Non-Party's confidential information in its possession, and the Party is
10 subject to an agreement with the Non-Party not to produce the Non-Party's
11 confidential information, then the Party shall:
(1)

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promptly notify in writing the Requesting Party and the Non-Party

13 that some or all of the information requested is subject to a confidentiality agreement
14 with a Non-Party;
(2)

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promptly provide the Non-Party with a copy of the Stipulated

16 Protective Order in this Action, the relevant discovery request(s), and a reasonably
17 specific description of the information requested; and
(3)

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make the information requested available for inspection by the

19 Non-Party, if requested.
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(c)

If the Non-Party fails to seek a protective order from this court within 14

21 days of receiving the notice and accompanying information, the Receiving Party may
22 produce the Non-Party's confidential information responsive to the discovery request.
23 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
24 any information in its possession or control that is subject to the confidentiality
25 agreement with the Non-Party before a determination by the court. Absent a court
26 order to the contrary, the Non-Party shall bear the burden and expense of seeking
27 protection in this court of its Protected Material.
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STIPULATED PROTECTIVE ORDER

1 10.
2

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

3 Protected Material to any person or in any circumstance not authorized under this
4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
7 persons to whom unauthorized disclosures were made of all the terms of this Order,
8 and (d) request such person or persons to execute the “Acknowledgment and
9 Agreement to Be Bound” that is attached hereto as Exhibit A.
10 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

11 PROTECTED MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain

13 inadvertently produced material is subject to a claim of privilege or other protection,
14 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
16 may be established in an e-discovery order that provides for production without prior
17 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
18 parties reach an agreement on the effect of disclosure of a communication or
19 information covered by the attorney-client privilege or work product protection, the
20 parties may incorporate their agreement in the stipulated protective order submitted to
21 the court.
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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

24 person to seek its modification by the Court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this

26 Protective Order no Party waives any right it otherwise would have to object to
27 disclosing or producing any information or item on any ground not addressed in this
28 Stipulated Protective Order. Similarly, no Party waives any right to object on any
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STIPULATED PROTECTIVE ORDER

1 ground to use in evidence of any of the material covered by this Protective Order.
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12.3 Filing Protected Material. A Party that seeks to file under seal any

3 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
4 only be filed under seal pursuant to a court order authorizing the sealing of the
5 specific Protected Material at issue. If a Party’s request to file Protected Material
6 under seal is denied by the court, then the Receiving Party may file the information in
7 the public record unless otherwise instructed by the court.
8 13.

FINAL DISPOSITION

9 After the final disposition of this Action, as defined in paragraph 4, within 60 days of
10 a written request by the Designating Party, each Receiving Party must return all
11 Protected Material to the Producing Party or destroy such material. As used in this
12 subdivision, "all Protected Material" includes all copies, abstracts, compilations,
13 summaries, and any other format reproducing or capturing any of the Protected
14 Material. Whether the Protected Material is returned or destroyed, the Receiving Party
15 must submit a written certification to the Producing Party (and, if not the same person
16 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
17 category, where appropriate) all the Protected Material that was returned or destroyed
18 and (2)affirms that the Receiving Party has not retained any copies, abstracts,
19 compilations, summaries or any other format reproducing or capturing any of the
20 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
21 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
22 legal memoranda, correspondence, deposition and trial exhibits, expert reports,
23 attorney work product, and consultant and expert work product, even if such materials
24 contain Protected Material. Any such archival copies that contain or constitute
25 Protected Material remain subject to this Protective Order as set forth in Section 4
26 (DURATION).
27 14.

ENFORCEMENT

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Any violation of this order may be punished by any and all appropriate
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STIPULATED PROTECTIVE ORDER

1 measures including, without limitation, contempt proceedings and/or monetary
2 sanctions.
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4 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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6 DATED: April 17, 2017
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_____________________________________
KAREN L. STEVENSON
UNITED STATES MAGISTRATE JUDGE

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STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, _____________________________ [print or type full name], of
4 _________________ [print or type full address], declare under penalty of perjury that
5 I have read in its entirety and understand the Stipulated Protective Order that was
6 issued by the United States District Court for the Central District of California on
7 ________ in the case of Cori Hill v. Bluestem Brands, Inc., Case No. 2:16-cv-041408 CAS-KS. I agree to comply with and to be bound by all the terms of this Stipulated
9 Protective Order and I understand and acknowledge that failure to so comply could
10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise
11 that I will not disclose in any manner any information or item that is subject to this
12 Stipulated Protective Order to any person or entity except in strict compliance with the
13 provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court

15 for the Central District of California for the purpose of enforcing the terms of this
16 Stipulated Protective Order, even if such enforcement proceedings occur after
17 termination of this action. I hereby appoint __________________________ [print or
18 type full name] of _______________________________________ [print or type full
19 address and telephone number] as my California agent for service of process in
20 connection with this action or any proceedings related to enforcement of this
21 Stipulated Protective Order.
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23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25 Printed name: _______________________________
26 Signature: __________________________________
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STIPULATED PROTECTIVE ORDER