Betsy Black v. Home Depot USA, Inc et al

Filing 20

PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams re Stipulation for Protective Order 17 NOTE: CHANGES MADE BY THE COURT (sbu)

NOTE: CHANGES MADE BY THE COURT
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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BETSY BLACK,
Plaintiff,

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Case No: 2:17-cv-00934 MWF(PLAx)

v.
THE HOME DEPOT U.S.A., INC. and
DOES 1 TO 20,

ORDER RE: STIPULATED
PROTECTIVE ORDER

Defendants.

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ORDER

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The Parties to the above-referenced action filed a joint Stipulated Protective

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Order. The Court having reviewed Stipulated Protective Order, and good cause

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appearing, orders as follows:

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1. PURPOSES AND LIMITATIONS

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

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

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

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Accordingly, Court enters the following Stipulated Protective Order.
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37600129[Proposed] Order Re: Stipulated Protective Order

2. DEFINITIONS

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2.1

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MWF(PLAX) (Riverside County Superior Court Case No. BC643104)
2.2

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Action: Betsy Black v. Home Depot U.S.A., Inc., 2:17-CV-00934

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

designation of information or items under this Order.
2.3

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“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 as specified above in the Good Cause

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Statement.
2.4

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support staff).
2.5

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

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

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

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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

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in disclosures or responses to discovery in this matter.
2.7

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

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

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expert witness or as a consultant in this Action.
2.8

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

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

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counsel.
2.9

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

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

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37600129[Proposed] Order Re: Stipulated Protective Order

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

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

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

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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,

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

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support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

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

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services

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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.

videotaping,

translating,

preparing

exhibits

or

as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

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photocopying,

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

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(e.g.,

from a Producing Party.

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3. SCOPE

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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 that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the trial

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

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37600129[Proposed] Order Re: Stipulated Protective Order

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4. DURATION

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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

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

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later of (1) dismissal of all claims and defenses in this Action, with or without

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prejudice; and (2) final judgment herein after the completion and exhaustion of all

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appeals, rehearings, remands, trials, or reviews of this Action, including the time limits

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for filing any motions or applications for extension of time pursuant to applicable law.

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5. DESIGNATING PROTECTED MATERIAL
5.1

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. The Designating Party must designate for protection only those

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parts of material, documents, items, or oral or written communications that qualify so

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that other portions of the material, documents, items, or communications for which

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protection is not warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

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to unnecessarily encumber the case development process or to impose unnecessary

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expenses and burdens on other parties) may expose the Designating Party to sanctions.

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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, that Designating Party must

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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 this

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Order (see, e.g., second paragraph of section 5.2(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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37600129[Proposed] Order Re: Stipulated Protective Order

Designation in conformity with this Order requires:

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(a)

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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

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proceedings),

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

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

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

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by making appropriate markings in the margins).

that

the

Producing

Party

affix

at

a

minimum,

the

legend

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

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not designate them for protection until after the inspecting Party has indicated which

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documents it would like copied and produced. During the inspection and before the

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

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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

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

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documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

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

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qualifies for protection, the Producing Party also must clearly identify the protected

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

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(b) for testimony given in depositions that the Designating Party identify the

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Disclosure or Discovery Material on the record, before the close of the deposition all

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protected testimony.

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(c) for information produced in some form other than documentary and for

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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 is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,

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

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37600129[Proposed] Order Re: Stipulated Protective Order

5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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

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

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

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assure that the material is treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges.

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

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Any Party or Non-Party may challenge a

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3

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

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

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to harass or impose unnecessary expenses and burdens on other parties) may expose

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

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withdrawn the confidentiality designation, all parties shall continue to afford the

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

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

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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

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

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

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

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Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

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37600129[Proposed] Order Re: Stipulated Protective Order

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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.
7.2

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Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”

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only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of the

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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

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

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“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

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

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a

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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 the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party

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requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not

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be

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed

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

permitted

to

keep

any

confidential

information

unless

they

sign

the

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37600129[Proposed] Order Re: Stipulated Protective Order

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testimony or exhibits to depositions that reveal Protected Material may be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order; and
(i)

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any mediator or settlement officer, and their supporting personnel,

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

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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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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,” that Party must:
(a)

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promptly notify in writing the Designating Party. Such notification shall

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

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

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issue in the other litigation that some or all of the material covered by the subpoena or

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order is subject to this Protective Order. Such notification shall include a copy of this

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Stipulated Protective Order; and
(c)

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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.

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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” before a determination by the court from which the subpoena or

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order issued, unless the Party has obtained the Designating Party’s permission. The

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Designating Party shall bear the burden and expense of seeking protection in that court

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of its confidential material and nothing in these provisions should be construed as

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

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from another court.

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37600129[Proposed] Order Re: Stipulated Protective Order

9.

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

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

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this Action and designated as “CONFIDENTIAL.” Such information produced by Non-

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

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

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Party from seeking additional protections.

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

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

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

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information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party

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

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with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated

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

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specific description of the information requested; and
(3) make the information requested available for inspection by the Non-

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Party, if requested.

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

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days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request. If

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the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

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information in its possession or control that is subject to the confidentiality agreement

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with the Non-Party before a determination by the court. Absent a court order to the

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contrary, the Non-Party shall bear the burden and expense of seeking protection in this

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court of its Protected Material.

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37600129[Proposed] Order Re: Stipulated Protective Order

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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

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

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that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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

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

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

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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

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parties reach an agreement on the effect of disclosure of a communication or information

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covered by the attorney-client privilege or work product protection, the parties may

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incorporate their agreement in the stipulated protective order submitted to the court.

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12.

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

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MISCELLANEOUS

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

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

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disclosing or producing any information or item on any ground not addressed in this
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37600129[Proposed] Order Re: Stipulated Protective Order

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

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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 Protected

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

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under seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue; good cause must be shown for the under seal filing. If a Party's

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request to file Protected Material under seal is denied by the court, then the Receiving

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Party may file the information in the public record unless otherwise instructed by the

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court.

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13.

FINAL DISPOSITION

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

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

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

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

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

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Whether the Protected Material is returned or destroyed, the Receiving Party must

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

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

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

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

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

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

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

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

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

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

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this Protective Order as set forth in Section 4 (DURATION).
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37600129[Proposed] Order Re: Stipulated Protective Order

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14.

BREACH

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

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

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sanctions.

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THE COURT FURTHER ORDERS AS FOLLOWS: ______________________

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_______________________________________________________________________

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______________________________________________________________________.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: April 18, 2017

__________________________________

Hon. Paul L. Abrams
United States Magistrate Judge

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37600129[Proposed] Order Re: Stipulated Protective Order