Hector Pimienta v. DS Services of America, Inc. et al

Filing 25

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 24 (see attached) (jm)

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SEYFARTH SHAW LLP
Candice T. Zee (SBN 227453)
Email: [e-mail]
2029 Century Park East, Suite 3500
Los Angeles, California 90067-3021
Telephone: [phone]
Facsimile: [phone]
SEYFARTH SHAW LLP
Duwayne A. Carr (SBN 299136)
Email: [e-mail]
333 South Hope Street, Suite 3900
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
DS SERVICES OF AMERICA, INC.

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Grant Joseph Savoy (SBN 284077)
Email: [e-mail]
Shoham J. Solouki (SBN 278538)
Email: [e-mail]
316 W. 2nd Street, Suite 1200
Los Angeles, CA 90012
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
Hector Pimienta

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HECTOR PIMIENTA, an individual, On
Behalf of Himself and All Similarly
Situated Current and Former Employees,

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Plaintiff,

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v.

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DS SERVICES OF AMERICA, INC., a
Georgia Corporation; and DOES 1 through
10, inclusive,

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Case No. 2:16-cv-09580-DSF (FFMx)
[Assigned to Judge Dale S. Fischer,
Courtroom 7D]
STIPULATED PROTECTIVE
ORDER

Defendants.

Trial Date:
May 7, 2019
Complaint Filed: November 15, 2016

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Plaintiff Hector Pimienta (“Plaintiff”) and DS Services of America, Inc. (“DSS”)

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(Jointly, “the Parties”) hereby stipulate, by and through their respective attorneys of

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record, as follows:

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PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be

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warranted. Accordingly, the Parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order. The Parties acknowledge that this Order does not

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confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under applicable legal

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principles. The Parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information under

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seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the

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standards that will be applied when a party seeks permission from the court to file

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material under seal.

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2.

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GOOD CAUSE STATEMENT
This action is likely to involve customer and pricing lists and/or other valuable

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research, development, commercial, financial, technical and/or proprietary information

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for which special protection from public disclosure and from use for any purpose other

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than prosecution of this action is warranted. Such confidential and proprietary materials

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and information consist of, among other things, confidential business or financial

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information, information regarding confidential business practices, or other confidential

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research, development, or commercial information (including information implicating

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privacy rights of third parties), information otherwise generally unavailable to the public,

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or which may be privileged or otherwise protected from disclosure under state or federal

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statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow
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of information, to facilitate the prompt resolution of disputes over confidentiality of

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discovery materials, to adequately protect information the parties are entitled to keep

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confidential, to ensure that the parties are permitted reasonable necessary uses of such

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material in preparation for and in the conduct of trial, to address their handling at the end

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of the litigation, and serve the ends of justice, a protective order for such information is

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justified in this matter. It is the intent of the parties that information will not be

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designated as confidential for tactical reasons and that nothing be so designated without a

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good-faith belief that it has been maintained in a confidential, non-public manner, and

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there is good cause why it should not be part of the public record of this case.

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3.

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DEFINITIONS
3.1

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

information or items under this Order.

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3.2

“CONFIDENTIAL” Information or Items: information (regardless of how it

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

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Federal Rule of Civil Procedure 26(c), and is specified above in the Good Cause

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Statement.

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3.3

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

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

staff).

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items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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3.5

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

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

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

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disclosures or responses to discovery in this matter.

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3.6

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

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pertinent to the litigation who (1) has been retained by a Party or his counsel to serve as

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an expert witness or as a consultant in this action, (2) is not a past or current employee of
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a Party or of a Party’s competitor, and (3) at the time of retention, is not anticipated to

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become an employee of a Party or of a Party’s competitor. This definition includes a

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professional jury or trial consultant retained in connection with this litigation.

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2.7

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

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

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3.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information

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or Items: extremely sensitive “Confidential Information or Items,” disclosure of which to

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another Party or Non-Party would create a substantial risk of serious harm that could not

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be avoided by less restrictive means.

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3.9

legal entity not named as a Party to this action.

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3.10 Party: any party to this action, including all of his retained experts and
Counsel of Record (and their support staffs).

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

3.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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3.12 Professional Vendors: persons or entities that provide litigation support

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

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

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their employees and subcontractors.

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3.13 Protected Material: any Disclosure or Discovery Material that is designated

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as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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3.14 Receiving Party: a Party that receives Disclosure or Discovery Material from

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a Producing Party.

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4.

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SCOPE
The protections conferred by this Stipulation and Order cover not only Protected

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

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel of Record that might reveal Protected Material. However, the protections

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conferred by this Stipulation and Order do not cover the following information: (a) any

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information that is in the public domain at the time of disclosure to a Receiving Party or

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becomes part of the public domain after its disclosure to a Receiving Party as a result of

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publication not involving a violation of this Order, including becoming part of the public

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record through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure or obtained by the Receiving Party after the disclosure from a

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source who obtained the information lawfully and under no obligation of confidentiality

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to the Designating Party. Any use of Protected Material at trial shall be governed by a

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separate agreement or order. This Order does not govern the use of Protected Material at

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trial.

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5.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

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

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writing or a court order otherwise directs. Final disposition shall be deemed to be the later

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of (1) dismissal of all claims and defenses in this action, with or without prejudice; and

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(2) final judgment herein after the completion and exhaustion of all appeals, rehearings,

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remands, trials, or reviews of this action, including the time limits for filing any motions

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or applications for extension of time pursuant to applicable law.

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6.

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DESIGNATING PROTECTED MATERIAL
6.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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

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

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appropriate standards. To the extent it is practical to do so, the Designating Party must

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designate for protection only those parts of material, documents, items, or oral or written

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communications that qualify.

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

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designated for protection do not qualify for protection at all or do not qualify for the level

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of protection initially asserted, that Designating Party must promptly notify all other

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parties that it is withdrawing the inapplicable designation.

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6.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 6.2(a) below), or as otherwise stipulated or

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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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

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

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that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains protected

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

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

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appropriate markings in the margins) and must specify, for each portion, the level of

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protection being asserted.

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

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be deemed

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting

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Party has identified the documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must affix

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the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party
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also must clearly identify the protected portion(s) (e.g., by making appropriate markings

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in the margins) and must specify, for each portion, the level of protection being asserted.
(b)

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for testimony given in deposition, that the Designating Party identify

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on the record, before the close of the deposition, all protected testimony and specify the

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level of protection being asserted. When it is impractical to identify separately each

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portion of testimony that is entitled to protection and it appears that substantial portions

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of the testimony may qualify for protection, the Designating Party may invoke on the

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record (before the deposition is concluded) a right to have up to 21 days to identify the

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specific portions of the testimony as to which protection is sought and to specify the level

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of protection being asserted. Only those portions of the testimony that are appropriately

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designated for protection within the 21 days shall be covered by the provisions of this

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Stipulated Protective Order. Alternatively, a Designating Party may specify, at the

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deposition or up to 21 days afterwards if that period is properly invoked, that the entire

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transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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Parties shall give the other parties notice if they reasonably expect a

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deposition to include Protected Material so that the other parties can ensure that

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only authorized individuals who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A) are present at those proceedings. The use of a document

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as an exhibit at a deposition shall not in any way affect its designation as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the

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title page that the transcript contains Protected Material, and the title page shall be

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followed by a list of all pages (including line numbers as appropriate) that have been

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designated as Protected Material and the level of protection being asserted by the

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Designating Party. The Designating Party shall inform the court reporter of these

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requirements. Any transcript that is prepared before the expiration of a 21-day
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period for designation shall be treated during that period as if it had been

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its

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entirety unless otherwise agreed. After the expiration of that period, the transcript

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shall be treated only as actually designated.

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(c)

for information produced in some form other than documentary and

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for any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.” If only a portion or portions of the information or item warrant protection, the

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Producing Party, to the extent practicable, shall identify the protected portion(s) and

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specify the level of protection being asserted.

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6.3

Inadvertent Failures to Designate. An inadvertent failure to designate

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qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material

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is treated in accordance with the provisions of this Order.

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7.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

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

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of confidentiality at any time. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a

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Party does not waive its right to challenge a confidentiality designation by electing not to

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mount a challenge promptly after the original designation is disclosed.

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7.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing

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the basis for each challenge. To avoid ambiguity as to whether a challenge has been

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made, the written notice must recite that the challenge to confidentiality is being made in

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accordance with this specific paragraph of the Protective Order. The parties shall attempt
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to resolve each challenge in good faith and must begin the process by conferring directly

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(in voice to voice dialogue; other forms of communication are not sufficient) within 14

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days of the date of service of notice. In conferring, the Challenging Party must explain

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the basis for its belief that the confidentiality designation was not proper and must give

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the Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the

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chosen designation. A Challenging Party may proceed to the next stage of the challenge

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process only if it has engaged in this meet and confer process first or establishes that the

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Designating Party is unwilling to participate in the meet and confer process in a timely

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manner.
7.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality

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under Civil Local Rule 37 (and in compliance with Civil Local Rule 79-5, if applicable)

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within 21 days of the initial notice of challenge or within 14 days of the parties agreeing

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that the meet and confer process will not resolve their dispute, whichever is earlier. Each

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such motion must be accompanied by a joint stipulation and competent declaration

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affirming that the movant has complied with the meet and confer requirements imposed

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in the preceding paragraph. Failure by the Designating Party to make such a motion,

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including the required declaration within 21 days (or 14 days, if applicable), shall

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automatically waive the confidentiality designation for each challenged designation. In

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addition, the Challenging Party may file a motion challenging a confidentiality

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designation at any time if there is good cause for doing so, including a challenge to the

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designation of a deposition transcript or any portions thereof. Any motion brought

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pursuant to this provision must be accompanied by a joint stipulation and competent

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declaration affirming that the movant has complied with the meet and confer

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requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to
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harass or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived the

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confidentiality designation by failing to file a motion to retain confidentiality as described

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above, all parties shall continue to afford the material in question the level of protection

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to which it is entitled under the Producing Party’s designation until the court rules on the

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challenge.

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8.

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ACCESS TO AND USE OF PROTECTED MATERIAL
8.1

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

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

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

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

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described in this Order. When the litigation has been terminated, a Receiving Party must

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comply with the provisions of section 14 below (FINAL DISPOSITION).

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

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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8.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party

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may disclose any information or item designated “CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Counsel of Record in this action, as well as

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employees of said Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and

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

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(b)

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

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

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

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(c)

the court and its personnel;

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(d)

court reporters and their staff;
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(e)

professional jury or trial consultants, and Professional Vendors to

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whom disclosure is reasonably necessary for this litigation and who have signed the

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

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(f)

during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by

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the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal

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Protected Material must be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Stipulated Protective Order.

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(g)

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

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the author or recipient of a document containing the information or a

(h)

any mediator or settlement officer, and their supporting personnel,

mutually agreed upon by any of the parties engaged in settlement discussions.
8.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the court or permitted in

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writing by the Designating Party, a Receiving Party may disclose any information or item

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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(a)

the Receiving Party’s Counsel of Record in this action, as well as

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employees of said Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and

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

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(b)

Experts of the Receiving Party (1) to whom disclosure is reasonably

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necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph

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7.4(a)(2), below, have been followed];

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(c)

the court and its personnel;

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(d)

court reporters and their staff, professional jury or trial consultants,

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

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and
(e)

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custodian or other person who otherwise possessed or knew the information.
8.4

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the author or recipient of a document containing the information or a

Procedures for Approving or Objecting to Disclosure of “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
(a)

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Unless otherwise ordered by the court or agreed to in writing by the

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Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order)

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any information or item that has been designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(c) first must make a written

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request to the Designating Party that (1) identifies the general categories of “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the Receiving Party

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seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert and

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the city and state of his or her primary residence, (3) attaches a copy of the Expert’s

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current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person

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or entity from whom the Expert has received compensation or funding for work in his or

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her areas of expertise or to whom the expert has provided professional services, including

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in connection with a litigation, at any time during the preceding five years,1 and (6)

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identifies (by name and number of the case, filing date, and location of court) any

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litigation in connection with which the Expert has offered expert testimony, including

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through a declaration, report, or testimony at a deposition or trial, during the preceding

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five years.

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(b)

A Party that makes a request and provides the information specified in

the preceding respective paragraphs may disclose the subject Protected Material to the
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If the Expert believes any of this information is subject to a confidentiality obligation to
a third-party, then the Expert should provide whatever information the Expert believes
can be disclosed without violating any confidentiality agreements, and the Party seeking
to disclose to the Expert shall be available to meet and confer with the Designating Party
regarding any such engagement.
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identified Expert unless, within 14 days of delivering the request, the Party receives a

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written objection from the Designating Party. Any such objection must set forth in detail

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the grounds on which it is based.
(c)

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A Party that receives a timely written objection must meet and confer

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with the Designating Party (through direct voice to voice dialogue) to try to resolve the

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matter by agreement within seven days of the written objection. If no agreement is

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reached, the Party seeking to make the disclosure to the Expert may file a motion as

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provided in Civil Local Rule 37 (and in compliance with Civil Local Rule 79-5, if

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applicable) seeking permission from the court to do so. Any such motion must describe

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the circumstances with specificity, set forth in detail the reasons why the disclosure to the

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Expert is reasonably necessary, assess the risk of harm that the disclosure would entail,

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and suggest any additional means that could be used to reduce that risk. In addition, any

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such motion must be accompanied by a joint stipulation and competent declaration

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describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and the

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content of the meet and confer discussions) and setting forth the reasons advanced by the

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Designating Party for its refusal to approve the disclosure.
In any such proceeding, the Party opposing disclosure to the Expert shall bear the

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burden of proving that the risk of harm that the disclosure would entail (under the

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safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected

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Material to his Expert.

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9.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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that Party must:

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(a)

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promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order; promptly notify in writing the party
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who caused the subpoena or order to issue in the other litigation that some or all of the

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

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

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cooperate with respect to all reasonable procedures sought to be

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

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

9

before a determination by the court from which the subpoena or order issued, unless the

10

Party has obtained the Designating Party’s permission. The Designating Party shall bear

11

the burden and expense of seeking protection in that court of its confidential material –

12

and nothing in these provisions should be construed as authorizing or encouraging a

13

Receiving Party in this action to disobey a lawful directive from another court.

14

10.

15

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION

16

(a)

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

17

Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY

18

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by Non-

19

Parties in connection with this litigation is protected by the remedies and relief provided

20

by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party

21

from seeking additional protections.

22

(b)

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

23

produce a Non-Party’s confidential information in its possession, and the Party is subject

24

to an agreement with the Non-Party not to produce the Non-Party’s confidential

25

information, then the Party shall:

26

1.

promptly notify in writing the Requesting Party and the Non-

27

Party that some or all of the information requested is subject to a confidentiality

28

agreement with a Non-Party;
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1

2.

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

2

Protective Order in this litigation, the relevant discovery request(s), and a reasonably

3

specific description of the information requested; and
3.

4
5

make the information requested available for inspection by the

Non-Party.
(c)

6

If the Non-Party fails to object or seek a protective order from this

7

court within 14 days of receiving the notice and accompanying information, the

8

Receiving Party may produce the Non-Party’s confidential information responsive to the

9

discovery request. If the Non-Party timely seeks a protective order, the Receiving Party

10

shall not produce any information in its possession or control that is subject to the

11

confidentiality agreement with the Non-Party before a determination by the court. Absent

12

a court order to the contrary, the Non-Party shall bear the burden and expense of seeking

13

protection in this court of its Protected Material.

14

11.

15

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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 writing

18

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

19

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

20

whom unauthorized disclosures were made of all the terms of this Order, and (d) request

21

such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

22

that is attached hereto as Exhibit A.

23

12.

24
25

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently

26

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

27

the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

28

This provision is not intended to modify whatever procedure may be established in an e15
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1

discovery order that provides for production without prior privilege review. Pursuant to

2

Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the

3

effect of disclosure of a communication or information covered by the attorney-client

4

privilege or work-product protection, the parties may incorporate their agreement in the

5

stipulated protective order submitted to the court.

6

13.

7
8

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

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

9

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

10

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

11

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

12

Protective Order. Similarly, no Party waives any right to object on any ground to use in

13

evidence of any of the material covered by this Protective Order.

14

13.3 Filing Protected Material. Without written permission from the Designating

15

Party or a court order secured after appropriate notice to all interested persons, a Party

16

may not file in the public record in this action any Protected Material. A Party that seeks

17

to file under seal any Protected Material must comply with Civil Local Rule 79-5.

18

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

19

sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a

20

sealing order will issue only upon a request establishing that the Protected Material at

21

issue is privileged or otherwise entitled to protection under the law. If a Receiving Party’s

22

request to file Protected Material under seal pursuant to Civil Local Rule 79-5(e) is

23

denied by the court, then the Receiving Party may file the Protected Material in the public

24

record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise instructed by the court.

25

14.

26

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 5,

27

each Receiving Party must return all Protected Material to the Producing Party or destroy

28

such material. As used in this subdivision, “all Protected Material” includes all copies,
16
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abstracts, compilations, summaries, and any other format reproducing or capturing any of

2

the Protected Material. Whether the Protected Material is returned or destroyed, the

3

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

4

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

5

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

6

destroyed, specifying the manner in which it was returned or destroyed, and (2) affirms

7

that the Receiving Party has not retained any copies, abstracts, compilations, summaries

8

or any other format reproducing or capturing any of the Protected Material.

9

Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

10

pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

11

correspondence, deposition and trial exhibits, expert reports, attorney work product, and

12

consultant and expert work product, even if such materials contain Protected Material.

13

Any such archival copies that contain or constitute Protected Material remain subject to

14

this Protective Order as set forth in Section 5 (DURATION).

15
16

FOR GOOD CAUSE SHOWN AND PURSUANT TO THE PARTIES’
STIPULATION, IT IS SO ORDERED.

17
18
19

DATED: May 19, 2017

20
21

/S/ FREDERICK F. MUMM
The Honorable Frederick F. Mumm
Magistrate Judge of the United States
District Court, Central District of California

22
23
24
25
26
27
28
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1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4

I,

__________________________

[print

or

type

full

name],

of

5

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

6

perjury that I have read in its entirety and understand the Stipulated Protective Order that

7

was issued by the United States District Court for the Central District of California on

8

[date] in the case of Hector Pimienta, an individual, On Behalf of Himself and All

9

Similarly Situated Current and Former Employees v. DS Services of America, Inc., a

10

Georgia Corporation; and DOES 1 through 10, inclusive, Case Number 2:16-cv-09580-

11

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

12

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

13

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

14

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

15

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

16

provisions of this Order.

17

I further agree to submit to the jurisdiction of the United States District Court for

18

the Central District of California for the purpose of enforcing the terms of this Stipulated

19

Protective Order, even if such enforcement proceedings occur after termination of this

20

action. I hereby appoint __________________________ [print or type full name] of

21

_______________________________________ [print or type full address and telephone

22

number] as my California agent for service of process in connection with this action or

23

any proceedings related to enforcement of this Stipulated Protective Order.

24

Date: _____________________

25

City and State where sworn and signed: _________________________________

26
27
28

Printed name: _______________________________
Signature: __________________________________
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