Jarel Brown v. Saks and Company LLC

Filing 28

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 27 . [See Order for details.] (san)

2:17-cv-04210-SJO-~

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Document 27 Filed 10/04/17 F

1 of 20 Page I D #:289

ACKERMANN & TILAJEF,P.C.
Crai J. Ackerman, CA Bar No. 229832
c
ja ackermanntilajef.com
118 South Beverly Drive, Suite 610
Los An eles, California 90035
Phone: [phone]
Fax:[phone]

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Additional Plaintiff's Counsel on Next Page)
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Attorney for Plaintiff
JAREL BROWN

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JULIE A. DUNNE,Bar No. 160544
Jdonne littler.com
RUTH .DAPPER,Bar No. 302498
rdapp~er littler.com
SOI W. roadway,Suite 900
San Diego, CA 92101.3577
Telephone: [phone]
Facsimile: 619.232.4302
DOMINIC J. MESSIHA,Bar No. 204544
dmessiha littler.com
LITTLER~NDELSON,P.C.
2
049 Century Park East
Fifth Floor
Los Angeles, CA 90067.3107
Telephone: [phone]
Facsimile: 310.553.5583

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Attorrieys for Defendant
SAKS &COMPANY,LLC

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JAREL BROWN,an individual, on
behalf of himself and others similarly
situated,
Plaintiff,

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2
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v.

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SAKS &COMPANY LLC a
Delaware Limited Lia~ility
Corporation, and DOES 1 thru 50,
inclusive,

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Case No. 2:17-cv-04210(SJO)JEM
DISCOVERY MATTER
2 17 Magistrate Judge John E.
McDermott
STIPULATION FOR PROTECTIVE
ORDER
Complaint Filed: June 6, 2017

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Defendants.
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I TTLER MENDELSON, P.C.
501 W. Broadway
S uite 900
S an Diego, CA 921 1.3577
619.P32.0447

STIPULATED PROTECTIVE ORDER

CASE NO. 2:17-CV-04210(SJO)

Ca

2:17-cv-04210-SJO-J

Dacument 27 Filed 10/04/17 ~

~ 2 of 20 Page ID #:290

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(Additional Plaintiff's Counsel-Continued)

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WINSTON LAW GROUP,P.C.
David S. Winston, Esq. CA Bar No. 301667
[e-mail]
1180 South Beverly Drive, Suite 610
Los Angeles, California 90035
Phone:[phone]
Fax:[phone]

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MELMED LAW GROUP P.C.
Jonathan Melmed, Esq.
1180 South Beverly Drive, Suite 610
Los Angeles, CA 90035
Phone: [phone]
Fax: [phone]

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LITTLER MENDELSO N, P.C.

5°, `" B`°a'"°Y
5v11900

San Diego, CA 92707 3577
619.232.0 dd1

STIPULATED PROTECTIVE ORDER

2,

CASE NO. 2:17—CV-04210(SJO)

Ca~~ 2:17-cv-04210-SJO-Jr

1

Document 27 Filed 10104/17 f

p 3 of 20 Page ID #:~91 ,

Plaintiff Jarel Brown ("Plaintiff') and Defendant Saks &Company, LLC

2 (
"Saks" or "Defendant") (collectively, the "Parties") in the above-captioned matter
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hereby submit this stipulated protective order and agree to the following:

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Introduction and Good Cause Statement

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The Parties have agreed that the proceedings in the above-captioned matter may

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involve the discovery and use of confidential, non-public, sensitive, and/or proprietary

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business, employment, trade secret, financial, and/or personally identifiable

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information, documents, and other materials. The Parties have agreed to produce such

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documents only on the agreement that such information or items will be disclosed as

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provided in this Order. In order to enable discovery in this matter, the Parties have

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agreed to stipulate to protect certain privileged and otherwise protected documents,

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data (including electronically stored information) and other information, including

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without limitation, metadata (collectively "Documents"), against claims of waiver and

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inadvertent production in the event they are produced during the course of this

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litigation whether pursuant to a Court Order, a Party's discovery request or informal

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production.

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Both Parties may be required to produce large volumes of Documents and the

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Parties wish to comply with discovery deadlines and complete discovery as

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expeditiously as possible, while preserving and without waiving any evidentiary

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protections or privileges applicable to the information contained in the Documents

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produced, including as against third parties and other Federal and State proceedings,

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and in addition to their agreement, need the additional protections of a Court Order

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under Federal Rule of Evidence ("FRE") 502(d) and (e) to do so. In order to comply

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with applicable discovery deadlines, a party may be required to produce certain

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categories of Documents that have been subject to minimal or no attorney review (the

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Disclosures"). This Stipulated Protective Order and Clawback Order (the "Order")is
27

designed to foreclose any arguments that by making such Disclosures, the disclosure

28 ~~ or production of Documents subject to a legally recognized claim of privilege, i
LITTLER MENDELSON, P.C.

5015~B`9oo'aY
San Oie9o, CA 92107.3577
619 232.0411

STIPULATED PROTECTIVE ORDER

CASE NO. 2:17—CV-04210(SJO)

Cas,~ 2:17-cv-04210-SJO-~

Document 27 Fiied 10/04/17 ` ~ 4 of 20 Page ID~#:292 R

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including without limitation the attorney-client privilege, work-product doctrine, or

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other applicable privilege:

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(
a)

was not inadvertent by the Producing Party;

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(
b)

that the Producing Party did not take reasonable steps to prevent

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the disclosure of privileged Documents;

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(
c)

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that the Producing Party did not take reasonable or timely steps to
rectify such Disclosure; and/or

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(
d)

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that such Disclosure acts as a waiver of applicable privileges or
protections associated with such Documents.

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Because the purpose of this Order is to protect and preserve privileged

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Documents, the Parties agree they are bound as follows from and after the date their

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counsel have signed it, even if such execution occurs prior to Court approval.

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The Parties seek the entry of the Order, pursuant to Federal Rule of Civil

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Procedure 26(c), governing the disclosure of documents and information designated as

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Confidential" or "Attorneys' Eyes Only" based on the terms below, as well as an
"

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Order, pursuant to FRE 502, governing the return of inadvertently produced

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documents and data and affording them the protections of FRE 502(d) and (e) based

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on the terms below.

,,

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THE PARTIES STIPULATE AND AGREE AS FOLLOWS:

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0

1.

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~~~~
(~,~.
t;

DEFINITIONS
a.

etP

:

any party to this action, including all of its officers, ~

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directors, employees, agents, consultants, retained experts, in-house and outside

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counsel(and their support staff.

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b.

Disclosures or Discovery Material:

all items or information,

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regardless of the medium or manner generated, stored, or maintained (including,

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among other things, documents, data (including electronically stored information),

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

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or responses to another party in this matter.

LITTLER MENDELSON, P.C.
soi w. e~oaeway
Sid le 900

say o~eyo, ca ezioi asn
679 132.0447

STIPULATED PROTECTIVE ORDER

1.

CASE NO. 2:17-CV-04210(SJO)

Y

Cas,~ 2:17-cu-04210-SJC~-J

1

c.

Document 27 Filed 10/04/17 f

~ 5 of 20 Page ID #:293

"Confidential" Information or Items: information (regardless of

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how generated, stored or maintained) that has not been made public or is not

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otherwise available or accessible in the public domain and that concerns or relates to

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the confidential or proprietary information of either Party or any third parties.

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Further, Confidential Information is information for which disclosure is likely to have

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the effect of causing harm to either Party, or person from whom the information was

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obtained, or to the Parties' or third-parties' privacy. Confidential Information also

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includes private information pertaining to Defendant's employees, including without

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limitation contact and other personally identifiable information, for which the Parties

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or any third party have a duty to maintain confidentiality.
d.

"Attorne ys'Eyes Only" Information or Items: extremely sensitive

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Confidential" Information or Items whose disclosure to another Party or nonparty
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would create a substantial risk of serious harm that could not be avoided by less

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restrictive means.

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e.

Receivin~rty: a Party that receives Disclosure or Discovery

Material from a Producing Party in this action.
f
.

Producing Party: a Party that produces Disclosure or Discovery

Material in this action.
g.

Desi~natin~y: a Party that designates information or items

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that it produces in disclosures or in responses to discovery as "Confidential" or

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"
Attorneys' Eyes Only."

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h.

Protected Material: any Disclosure or Discovery Material that is

designated as "Confidential" or as "Attorneys' Eyes Only" pursuant to this Order.
i.

Outside Counsel: attorneys who are not employees of a Party but

who are retained to represent or advise a Party in this action.

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j.

In-House Counsel: attorneys who are employees of a Party.

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k.

Counsel

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without qualifier:

Outside Counsel and In-House

Counsel (as well as their support staffs).

LITTLER MENDELSON, P.C.

5°, `" B`°a°"aY
5aite 900

San Diego. CA 92101.3577
fi 19 272 0447

STIPULATED PROTECTIVE ORDER

2.

CASE NO. 2:17—CV-04210(SJO)

l

2
:17-cv-04210-SJO-J'

1.

1

Document 27 Filed 10/04/17 f?6 of 20 Page ID #:294

Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its Counsel to

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serve as an expert witness or as a consultant in this action and who is not a past or a

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current employee of a Party or of a competitor of a Party and who, at the time of

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retention, is not anticipated to become an employee of a Party or a competitor of a

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Party. This definition includes a professional jury or trial consultant retained in

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connection with this litigation.

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m.

Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying; videotaping; translating; preparing e~ibits or

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

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their employees and subcontractors.

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2
.

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The protections conferred by this Order cover not only Protected Material (as

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defined above), but also any information copied or extracted therefrom, as well as all

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copies, excerpts, summaries, or compilations thereof, plus testimony, conversations,

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or presentations by Parties or Counsel to or in Court or in other settings that might

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reveal Protected Material.

SCOPE

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3
.

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Even after the termination of this litigation, the confidentiality obligations

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

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otherwise in writing or a Court order otherwise directs.

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.

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DURATION

DESIGNATING PROTECTED MATERIAL
a.

Exercise of Restraint and Care in Desi gnatin~ Material for

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Protection.

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protection under this Order must. take care to limit any such designation to specific

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material that qualifies under appropriate standards. A Designating Party must take

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

Each Party or non-party that designates information or items for

28 ~~ or written communications that qualify — so that other portions of the material
LITTLER MENDELSO N, P.C.

5°, `" B`°a°"aY
S"~e 900

San Dlego, CA 91101.3577
619.232.O4d1

STIPULATED PROTECTIVE ORDER

3,

CASE NO. 2:17—CV-04210(SJO)

J

,~~,

2;17-cv-04210-5JC~-J

Document 27 Filed 1Q/04/17 F

~ 7 of 20 Page ID #:2~5

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documents, items, or communications for which protection is not warranted are .riot

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swept unjustifiably within the ambit ofthis Order.

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If it comes to a Party's attention that information or items that it designated for

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protection do not qualify for protection at all, or do not qualify for the level of

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protection initially asserted, that Party must promptly notify the other Party that it is

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withdrawing the mistaken designation.

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b.

Manner and Timing of Designations.

Except as otherwise

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provided in this Order (see, e.g., second paragraph of Paragraph 4(b)(i) below), or as

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otherwise stipulated or ordered, 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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i.

For information in documentary form (apart from

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transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend "CONFIDENTIAL" or "ATTORNEYS'EYES ONLY" on each

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

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page qualifies for protection, the Producing Party also must clearly identify xhe

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protected portions)(e.g., by making appropriate markings in the margins) and must

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specify, for each portion, the level of protection being asserted (either

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CONFIDENTIAL" or "ATTORNEYS'EYES ONLY").
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In the event that a party makes documents available for inspection, rather than

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delivering copies to another party, no marking need be made in advance of the initial

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inspection. For purposes of the initial inspection, all documents produced shall be

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considered as marked "ATTORNEYS' EYES ONLY." Thereafter, ~ upon the
p
inspecting party's selection of documents for copying, the Producing Party may mark

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the copies "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY," pursuant to this

2 i Order.
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For testimony given in deposition or in other pretrial or trial proceedings,

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that the Party offering or sponsoring the testimony identify on the record, before the

LITTLER MENDELSO N, P.C.

5°, `" e`°a'w'"
5oi1e 900

San Dieg o, CA 92101 35]7
919.2~2.Od41

STIPULATED PROTECTIVE ORDER

4,

CASE NO. 2:17—CV-04210(SJO)

I'

2:17-cv-04210-5J0-J

Document 27 Filed 10/04/17 F

~ 8 of 20 Page ID #:296

1

close of the deposition, hearing, or other proceeding, all protected testimony, and

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further specify any portions of the testimony that qualify as "ATTORNEYS' EYES

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ONLY." When it is impractical to identify separately each portion oftestimony that is

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entitled to protection, and when it appears that substantial portions of the testimony

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may qualify for protection, the Party that sponsors, offers, or gives the testimony may

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invoke on the record (before the deposition or proceeding is concluded) a right to have

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up to twenty (20) days after the transcript is made available to identify the specific

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

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protection being asserted ("CONFIDENTIAL" or "ATTORNEYS' EYES OILY").

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Only those portions of the testimony that are appropriately designated for protection

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within the 20 days shall be covered by the provisions of this Stipulated Protective

12

Order.

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"
CONFIDENTIAL" OR "ATTORNEYS' EYES ONLY" pursuant to this Order as

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instructed by the Party offering or sponsoring the witness or presenting the testimony.

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Until the passage of 20 days, the entire transcript shall be treated as

Transcript pages containing Protected Material must be separately bound by the
court reporter, who must affix to the top of each such page the legend

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CONFIDENTIAL" or "ATTORNEYS' EYES ONLY," as instructed by the Party
18

offering or sponsoring the witness or presenting the testimony.

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ii.

For information produced in some form other than

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0

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

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prominent place on the exterior ofthe container or containers in which the information ~

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or item is stored the legend "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY:"

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If only portions of the information or item warrant protection, the Producing Party, to

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the extent practicable, shall identify the protected portions, specifying whether they

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qualify as "CONFIDENTIAL" or as "ATTORNEYS'EYES ONLY."

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6
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c.

Inadvertent Failures to Desi~.

If timely corrected, an

inadvertent failure to designate qualified information or items as "CONFIDENTIAL"

28 ~~ or "ATTORNEYS' EYES ONLY" does not, standing alone, waive the Designating
LITTLER MENDELSON, P.C.

5°, `" B`°a°"aY
5oite 900

San ~Iego, CA 91107.3577
619.232.Oad1

STIPULATED PROTECTIVE ORDER

$,

CASE NO. 2:17—CV-04210(SJO)

. .,

C

2
:17-cv-D4210-SJO-J~

Document 27 Filed 10/04/17 F ~~ 9 of 20 Page ID #`:297

a.:<;
,
,

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Party's right to secure protection under this Order for such material. If materiel is

2

appropriately designated as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY"

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after the material was initially produced, the Receiving Party, on timely notification of

4

the designation, must make reasonable efforts to assure that the material is treated in

5

accordance with the provisions of this Order from that point forward.

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Designating Party may seek relief to address any situation where the Receiving Party

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refuses, either directly or indirectly, to accord proper treatment of materials after

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notice of an inadvertent failure to designate by the Designating Party.

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d.

The

Use of Confidential and Attorneys' Eyes Only Material.

10

Documents and other material designated "CONFIDENTIAL" and "ATTORNEYS'

11

EYES ONLY" shall be used solely and exclusively for preparing for and prosecuting

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this case, including any claims on behalf of the named plaintiffs) and any putative

13

class members pending the completion of the judicial process, including appeal.

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"
CONFIDENTIAL" and "ATTORNEYS' EYES ONLY" Documents and other ~

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material cannot be used for any other purpose in any other matter or proceeding for

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any reason whatsoever.

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18

5.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
a.

Timing of Challenges. The Parties agree to make best efforts to

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promptly notify the other Party of any confidentiality designation that is in dispute.

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However, unless a prompt challenge to a Designating Party's confidentiality

21

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary

22

economic burdens, or a significant disruption or delay of the litigation, a Party does

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not waive its right to challenge a confidentiality designation by electing in good faith

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not to mount a challenge promptly after the original designation is disclosed. Until

25

agreement is reached between Parties as to a Confidentiality Designation or the Court

2
6

rules on a judicial challenge to a Confidentiality Designation pursuant to the

27

procedures in Paragraph 5(b) below, the

document shall be treated

as

28 ~~ "
CONFIDENTIAL" or "ATTORNEYS'EYES ONLY" pursuant to this Agreement.
LITTLER MENDELSON, P.C.
501 W. Broadway

s~~ie soo
S en Diego, CA 92101.3577
619.232.0441

STIPULATED PROTECTIVE ORDER

6

CASE NO. 2:17-CV-04210(SJO)

2:17-cv-04210-SJO-J~

Document 27 Filed 10/04/17 P

10 of 20 Page ID #:298
~~

1

b.

Judicial Intervention. In the event that the Receiving Party objects

2

to a confidentiality designation, the Receiving Party's counsel shall advise counsel for

3

the Designating Party, in writing, of the grounds for all such objections, the specific

4

documents, testimony or information to which each objection pertains, and the

5

specific reasons and legal authority or support for all such objections (the

6 "
Designation Objections").

The purpose of the objections) is to: (1) give the

7

Designating Party a fair basis to decide whether to de-designate, and (2)to facilitate a

8

good

9

designated.

faith

discussion

about

whether

the

documents) should

be

de-

Counsel for the Designating Party shall have thirty (30) days from

10

receipt of the written Designation Objections to either (a) agree in writing to de-

11

designate documents, testimony or information pursuant to any or all of the

12

Designation Objections and/or (b) file a motion with the Court seeking to uphold any

13

or all designations on documents, testimony or information addressed by the

14

Designation Objections (the "Designation Motion"). Pending a resolution of the

15

Designation Motion by the Court, any and all existing designations on the documents,

16

testimony or information at issue in such Motion shall remain in place. The

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Designating Party shall have the burden on any Designation Motion of establishing

18

the applicability of its confidentiality designation.

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6
.

ACCESS TO AND USE OF PROTECTED MATERIAL
a.

Basic Principles. A Receiving Party may use Protected Material

21

that is disclosed or produced by another Party in connection with this case only for

22

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

23

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

2
4

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

25

with the provisions ofParagraph 10 below(FINAL DISPOSITION).

2
6

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

27

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

28 ~~ authorized under this Order.
L1T7LER MENDELSON, P.C.

5°, `" B'°a'waY

S uite 900
S an Diego.. CA 92101.35]
619.231.0441

STIPULATED PROTECTIVE ORDER

7.

CASE NO. 2:17—CV-04210(SJO)

Cash 2:17-cv-04210-SJO-JF

1

b.

Document 27 Filed 10/04/17 P

11 of 20 Page I D #:299

Disclosure of "CONFIDENTIAL" Information or Items. Unless

2

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

3

Receiving Party may disclose any information or item designated CONFIDENTIAL

4

only to:

5

i.

the Receiving Party's Outside Counsel of record in this

6

action, as well as employees of said Outside Counsel engaged in the representation of

7

the Parties in the above-captioned action;

8
9

ii.

officers, directors, agents and employees (including In-House Counsel));

10
11

the Parties (if an entity, this includes present and former

iii.

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

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

12 "
Agreement to Be Bound by Protective Order"(Exhibit A);
13

iv.

14

Paragraph 9 below;

15

v.

16

the Court and its personnel, subject to the procedures of

court reporters, their staff, and professional vendors retained

f purposes ofthis litigation;
or

17

vi.

potential, anticipated or actual fact witnesses and their

18

counsel to whom disclosure is reasonably necessary and who have signed the

19

"
Agreement to Be Bound by Protective Order"(E~ibit A); and

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21

vii.

the author of the document or the original source of'the

information.

22

c.

Disclosure of "ATTORNEYS' EYES ONLY" Information '`or

23

Items.

24

Designating Party, a Receiving Party may disclose any information or item designated

25

"
ATTORNEYS'EYES ONLY" only to:

Unless otherwise ordered by the court or permitted in writing by the

2
6

i. the Receiving Party's Outside Counsel of record in this action, as

27

well as employees of said Outside Counsel engaged in the representation ofthe Parties

28 ~~ in the above-captioned action;
LITTLER MENDELSO N, P.C.

5°, "' B`°a'waY

S Ji be 90~
S an Oieg o, CA 92101.3577
619.272.0441

STIPULATED PROTECTIVE ORDER

$.

CASE NO. 2:17—CV-04210(SJO)

Cas~ 2:17-cv-04210-SJ(J-JF~

1

~acument 27 Filed 10/04/17 P' ~ 12 of 20 Page ID #:300

ii. In-House Counsel ofthe Receiving Party;

2

iii. Experts (as defined in this Order) of the Receiving Party (1) to

3

whom disclosure is reasonably necessary for this litigation; (2) who have signed the

4

"
Agreement to Be Bound by Protective Order"(E~ibit A).

5

iv. the Court and its personnel, subject to the procedures of Paragraph

6 ~~ 9 below;
7

v. court reporters, their staff, and professional vendors retained for ~
purposes ofthis litigation; and
vi. the author of the document or the original source of the

10
11
12

information.
7
.

PROTECTED MATERIAL SUBPOENAED
PRODUCED IN OTHER LITIGATION

OR

ORDERED

13

If a Receiving Party is served with a subpoena or an order issued in ot~er

14

litigation that would compel disclosure of any information or items designated ih this

15

action as "CONFIDENTIAL" or "ATTORNEYS'EYES ONLY," the Receiving Party

16

must so notify the Designating Pariy, in writing (by email, if possible) immediately

17

and in no event more than three (3) court days after receiving the subpoena or order.

18

Such notification must include a copy of the subpoena or court order. The Receiving

19

Party also must immediately inform in writing the Party who caused the subpoena or

20

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

21

subpoena or order is the subject of this Protective Order. In addition, the Receiving

22

Party must deliver a copy of this Stipulated Protective Order promptly to the Party in

23

the other action that caused the subpoena or order to issue. Under no circumstances

24

shall the Receiving Party produce "CONFIDENTIAL" or "ATTORNEYS' EYES

25

ONLY" absent a specific Order by the Court after an appropriate Motion to Quash

2
6

and/or Compel has been filed.

27

The purpose of imposing these duties is to alert the interested parties to the

28

existence of this Protective Order and to afford the Designating Party in this case an

LITTLER MENDELSON, P.C.

5°„" B'°a'"aY
S~~~e 900

San Diego, CA 97107.3577
619.232.~I41

STIPULATED PROTECTIVE ORDER

9.

CASE NO. 2:17—CV-04210(SJO)

Cash 2:17-cv-04210-SJO-Jf

Document 27 Filed 10/0 /17 P

13 of 20 Page ID #:301
d

1

opportunity to try to protect its confidentiality interests in the court from which the

2

subpoena or order issued. The Designating Party shall bear the burdens and the

3

expenses of seeking protection in that court of its confidential material —arid nothing

4

in these provisions should be construed as authorizing or encouraging a Receiving

5

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

6

8
.

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

15

9
.

16

All documents containing "CONFIDENTIAL" or "ATTORNEYS' EYES

17

ONLY" information that are filed with the Court in this action shall, as permitted by

18

the Court, be sealed pursuant to Central District Civil Local Rule 79-5 and the

19

applicable Chamber Rules of the Court, and designated with the appropriate

20

Confidentiality Designation, along with a notation that the contents are subject to a

21

Protective Order and are not to be revealed except by further order ofthe Court.

FILING PROTECTED MATERIAL

22

10.

23

Unless otherwise ordered or agreed in writing by the Producing Party, within

24

sixty (60) days after the final termination of this action (including any appeals), each

25

Receiving Party must either: (1) return all Protected Material to the Producing Party; j

26

or (2) destroy all Protected Material. As used in this subdivision, "all Protected

27

Material" includes all copies, abstracts, compilations, summaries or any other form of

FINAL DISPOSITION

28 ~~ reproducing or capturing any of the Protected Material.

Upon request by the

LITTLER MENDELSON, P.C.
507 W. Broadway
Sid le 900
San Diego, CA 92101 3577
619.171 Od41

STIPULATED PROTECTIVE ORDER

I O.

CASE NO. 2:17-CV-04210(SJO)

Cast 2.17-cu-04210-SJO-Jf

Document 27 Filed 10/Q4/17 F

14 of 20 Page IQ #:302

1

Designating Party, the Receiving Party must submit a written certification to the

2

Designating Party by the sixty (60) day deadline that identifies (by category, where

3

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

4

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

5

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

6

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

7

pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney

8

work product, even if such materials contain Protected Material. Any such archival

9

copies that contain or constitute Protected Material remain subject to this Protective

10

Order as set forth in Paragraph 3(DURATION)above.

11

1 1.

12

Pursuant to FRE 502(d) and (e), the Parties agree to and the Court orders

13

protection of privileged and otherwise protected Documents against claims of waiver

CLAWBACK AGREEMENT

14 (
including as against third parties and in other federal and state proceedings) as
15

f
ollows:

16

(
a)

The disclosure or production of Documents by a Producing Party subject

17

to a legally recognized claim of privilege, including without limitation the attorney-

18

client privilege and the work-product doctrine, to a Receiving Party, shall in no way

19

constitute the voluntary disclosure of such Document.

2
0

(
b)

The inadvertent disclosure or production of any Document in this action

21

shall not result in the waiver of any privilege, evidentiary protection or other

22

protection associated with such Document as to the Receiving Party or any third

23

parties, and shall not result in any waiver, including subject matter waiver, of any

2
4

kind.

25

(c)

If, during the course of this litigation, a party determines that any

2
6

Document produced by another party is or may reasonably be subject to a legally

27

recognizable privilege or evidentiary protection ("Protected Document"):

28 ~~
LITTLER MENDELSON, P.C.
501 W. Broadway
S uite 900
San Diego. CA 92707.3577
619.232 0411

STIPULATED PROTECTIVE ORDER

1 1.

CASE NO. 2:17-CV-04210(SJO)

Cash 2:17-cv-04210-SJO-JF

Document 27 Filed 10/04/17 P

~ 15 of 20 Page ID #:3'03
I~

1

i.

the Receiving Party shall: (A) refrain from reading the Protecxed

2

Document any more closely than is necessary to ascertain that it is privileged or

3

otherwise protected from disclosure; (B) immediately notify the Producing Party. in

4

writing that it has discovered Documents believed to be privileged or protected;(C)

5

specifically identify the Protected Documents by Bates number range, and,(D)within

6

ten (10) days of discovery by the Receiving Party, return, sequester, or destroy all

7

copies of such Protected Documents, along with any notes, summaries, abstracts or

8

compilations of the content of the Protected Documents.

9

Protected Document has been loaded into a litigation review database under the

10

control of the Receiving Party, the Receiving Party shall have all electronic copies of

11

the Protected Document extracted from the database.

12

Documents cannot be destroyed or separated, they shall not be reviewed, disclosed, or'

13

otherwise used by the Receiving Party. Notwithstanding, the Receiving Party is under

14

no obligation to search or review the Producing Party's Documents to identify

15

potentially privileged or work product Protected Documents.

16

ii.

To the extent that a

Where such Protected

Ifthe Producing Party intends to assert a claim of privilege or other

17

protection over Documents identified by the Receiving Party as Protected Documents,

18

the Producing Party will, within ten (10) days of receiving the Receiving Party's

19

written notification described above, inform the Receiving Party of such intention in

2
0

writing and shall provide the Receiving Party with a log for such Protected

21

Documents that is consistent with the requirements of the Federal Rules of Civil

22

Procedure, setting forth the basis for the claim of privilege or other protection. In the

23

event that any portion of a Protected Document does not contain privileged or

24

protected information, the Producing Party shall also provide to the Receiving Party a

25

redacted copy of the document that omits the information that the Producing Party

2
6

believes is subject to a claim of privilege or other protection.

27

(
d)

If, during the course of this litigation, a Party determines it has produced

28 ~~ a Protected Document:
LITTLER MENDELSON, P.C.

501 s,~`9oowaY
S an Dleg o, CA 92101.3577
619.232.Odg1

STIPULATED PROTECTIVE ORDER

12.

CASE NO. 2:17-CV-04210(SJO)

Cash 2:17-cv-04210-SJO-J~

1

i.

Document 27 Filed 10/04/17 F

~ 16 of 20 Page ID #:304

the Producing Party may notify tk~e Receiving Party of such

2

inadvertent production in writing, and demand the return of such documents. Such

3

notice shall be in writing, however, it may be delivered orally on the. record at a

4

deposition, promptly followed up in writing. The Producing Party's written notice

5

will identify the Protected Document inadvertently produced by bates number range,

6

the privilege or protection claimed, and the basis for the assertion of the privilege and

7

shall provide the Receiving Party with a log for such Protected Documents that is

8

consistent with the requirements of the Federal Rules of Civil Procedure, setting forth

9

the basis for the claim of privilege or other protection. In the event that any portion of

10

the Protected Document does not contain privileged or protected information, the

11

Producing Party shall also provide to the Receiving Party a redacted copy of the

12

Document that omits the information that the Producing Party believes is subject to a

13

claim of privilege or other protection.

14

ii.

The Receiving Party must, within ten (10) days of receiving the

15

Producing Party's written notification described above, return, sequester, or destroy

16

the Protected Document and any copies, along with any notes,.summaries, abstracts or

17

compilations of the content of the Protected Document. To the extent that a Protected

18

Document has been loaded into a litigation review database under the control of the

19

Receiving Party, the Receiving Party shall have all electronic copies of the Protected

20

Document extracted from the database.

21

(e)

To the extent that the information contained in a Protected Document has

22

already been used in or described in other documents generated or maintained by the

23

Receiving Party prior to the date of receipt of written notice by the Producing Party as

24

set forth in paragraphs 11(c)(ii) and 11(d)(i), then the Receiving Party shall sequester

25

such documents until the claim has been resolved. If the Receiving Party disclosed

2
6

the Protected Document before being notified of its inadvertent production, it must

27

take all reasonable steps to retrieve it.

28
LITTLER MENDELSON, P.C.

5°, "' B'°'°waY

see o~eyo, '~e 900 ssn
5°ca ss~oi
6t 9.232.0441

STIPULATED PROTECTIVE ORDER

13.

CASE NO. 2:17—CV-04210(SJO)

2:17-cv-04210-SJO-J~

1

(fl

Document 27 Filed 10/04/17- F

17 of 20 Page I~ #:305

The Receiving Party's return, sequestering or destruction of Protected

2

Documents as provided herein will not act as a waiver of the Requesting Party's right

3

to move for the production of the returned, sequestered or destroyed documents on the

4

grounds that the documents are not, in fact, subject to a viable claim of privilege or

5

protection. However, the Receiving Party is prohibited and estopped from arguing

6 II that:
7
8

i.

the disclosure or production of the Protected Documents acts as a

waiver of an applicable privilege or evidentiary protection;

9

ii.

the disclosure ofthe Protected Documents was not inadvertent;

10

iii.

the Producing Party did not take reasonable steps to prevent the

11

disclosure ofthe Protected Documents; or

12
13
14

iv.

the Producing Party failed to take reasonable or timely steps to

rectify the error pursuant to Federal Rule of Civil Procedure 26(b)(5)(B), or otherwise.
(
g)

Either party may submit Protected Documents to the Court under seal,

15

pursuant to Central District Civil Local Rule 79-5 and the applicable Chamber Rules

16

of the Court, for a determination of the claim of privilege or other protection. The

17

Producing Party shall preserve the Protected Documents until such claim is resolved.

18

The Receiving Party may not use the Protected Documents for any purpose absent this

19

Court's order.

2
0

(
h)

Upon a determination by the Court that the Protected Documents are

21

protected by the applicable privilege or evidentiary protection, and if the Protected

22

Documents have been sequestered rather than returned or destroyed by the Receiving

23

Party, the Protected Documents shall be returned or destroyed within 10 (ten) days of

2
4

the Court's order. The Court may also order the identification by the Receiving Party

25

ofProtected Documents by search terms or other means.

26
27

(
i)

Nothing contained herein is intended to, or shall serve to limit a party's

right to conduct a review of documents, data (including electronically stored

28 ~~ information) and other information, including without limitation, metadata, for
LITTLER MENDELSON, P.C.
sai w. e~oeawey

s~~~e 900

San ~lego, CA 92101 . 577
619.232.0441

STIPULATED PROTECTIVE ORDER

14.

CASE NO. 2:17—CV-04210(SJO)

Cas 2:17-cv-04210-SJ~-JF

Document 27 Filed 10/04/17 P

~ 18 of 20 Page ID #:306

1

relevance, responsiveness and/or the segregation of privileged and/or protected

2

information before such information is produced to another party.

3
4
5
6

(
j)

By operation of the Parties' agreement and Court Order, the Parties are

specifically afforded the protections ofFRE 502(d)and (e).
12.

MISCELLANEOUS
a.

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

7

any person to seek its modification by the Court in the future or the Court's right to

8

modify this Order.

9

b.

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

10

this 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 Order.

12

Similarly, by agreeing to this Stipulation, no Party waives any right to object on any

13

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

14

Once executed by the Parties, the Stipulation shall be by treated by the Parties

15

as an Order of Court until it is formally approved by the Court. This Stipulation shall

16

also apply to additional parties, if any, that join this action unless otherwise specified

17

in writing by the parties and/or the Court.

18
19
2
0
21
22
23
24
25
2
6
27
28 ~~
LITTLER MENDELSO N, P.C.

' "" B`°a°"'Y
°,

S ui te 900
S an Dlego, CA 92107.3577
fi 19.232.Odd1

STIPULATED PROTECTIVE ORDER

15.

CASE NO. 2:17—CV-04210(SJO)

2:17-cv-04210-SJO-JF

1

Document 27 Filed 10/04/17 P

~ 19 of 2Q Page. ID #:30~

STIPULATED TO THIS 4TH DAY OF OCTOBER 2017.

2
3

Dated:

October 4, 2017

LITTLER ME.NDELSON,P.C.

4

By: /s/Dominic J. Messiha
JULIE A. DUNNE
DOMINIC J. MESSIHA
RUTH NOEL DAPPER
Attorneys for Defendant

5
6
7

Dated:

October 4, 2017

ACKERMANN & TILAJEF,P.C.

8
By: /s/ Craig J. Ackermann
CRAIG J. ACKERMANN
Attorney for Plaintiff

9
10
11
Dated:

October 4, 2017

WINSTON LAW GROUP,P.C.

12

By:/s/ David S. Winston
DAVID S. WINSTON
Attorney for Plaintiff

13
14
15

Dated:

October 4, 2017

MELMED LAW GROUP P.C.

16
17

By:/s/ Jonathan Melmed
JONATHAN LELMED
Attorney for Plaintiff

18
19
2
0
21

FOR GOOD CAUSE SHOWN,IT IS SO ORDERED:
DATED:

~v ~~

~l

22
23
24

ohn E. McDermott
Unit States Magistrate Judge

25
26
27
28
LITTLER MENDELSON, P.C.
501 W. Broadway

5~~~e 900

say o~eyo, ca e2m~.asn
fi19 732.0491

STIPULATED PROTECTIVE ORDER

1().

CASE NO. 2:17—CV-04210(SJO)

~,t
~;

e

Cas 2:17-cv-04210-SJO-JF

Qocument 27 Filed 10/04/17 P

20 of 2Q Page ID #:308
d

1

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

2
a

EXHIBIT A
3
DECLARATION

4
5

I declare as follows:

6
1.

My full name is:

7
8

I live at:
(state address)

9
I am employed as:
10
11

(
state position)
by:

12

(
state name and address of employer)

13
14
15
16
17
18
19
2
0

2
.
I am aware that the parties have stipulated to, and the Court has
approved, a Protective Order limiting disclosure and use of the Confidential and
Attorneys' Eyes Only information and documents produced by the parties in the
matter of.Iarel Brown v. Saks &Company, LLC, U.S. District Court for the Central
District of California Case No. 2:17-CV-04210(SJO). A copy of the Order has been
provided to me.
3
.
I promise that documents and information designated as "Confidential"
or "Attorneys' Eyes Only" under the Order will be used by me only in testifying
and/or assisting counsel in preparing for and participating in the above-referenced
litigation and not for any business, personal or other purposes whatsoever.

21
2
2

I declare under penalty of perjury that the foregoing is true and correct.

23
2
4

Dated:
(
signature)

25
2
6
27
28
LITTLER MENDELSON, P.C.
sot w e~aaaway
5 di ke 9~a
S an O'ieg o, CA 92101.35]7
619 232.0441

STIPULATED PROTECTIVE ORDER

CASE NO. 2:17-CV-04210(SJO)

j

F