Katherine Saltzberg v. Home Depot, U.S.A., Inc.

Filing 25

PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Amended Stipulated Protective Order 24 . (See document for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

11 KATHERINE SALTZBERG, and
individual, on behalf of herself, and
12 on behalf of all persons similarly
situated,
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Plaintiff,
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vs.
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HOME DEPOT U.S.A., INC., a
16 Corporation
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CASE NO. 2:17-cv-05798-RGK-AS

Hon. Alka Sagar

AMENDED STIPULATED
PROTECTIVE ORDER

Defendant.
Complaint filed: August 4, 2017

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AMENDED STIPULATED PROTECTIVE ORDER

1 1.

A. PURPOSES AND LIMITATIONS

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

3 proprietary, or private information for which special protection from public
4 disclosure and from use for any purpose other than prosecuting this litigation may
5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
6 enter the following Stipulated Protective Order. The parties acknowledge that this
7 Order does not confer blanket protections on all disclosures or responses to
8 discovery and that the protection it affords from public disclosure and use extends
9 only to the limited information or items that are entitled to confidential treatment
10 under the applicable legal principles. The parties further acknowledge, as set forth in
11 Section 12.3, below, that this Stipulated Protective Order does not entitle them to
12 file confidential information under seal; Civil Local Rule 79-5 sets forth the
13 procedures that must be followed and the standards that will be applied when a party
14 seeks permission from the court to file material under seal.
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B.

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This action is likely to involve the production of confidential personnel files

GOOD CAUSE STATEMENT

17 containing consumers’ personal identifying information and other personal
18 information. Accordingly, to expedite the flow of information, to facilitate the
19 prompt resolution of disputes over confidentiality of discovery materials, to
20 adequately protect information the parties are entitled to keep confidential, to ensure
21 that the parties are permitted reasonable necessary uses of such material in
22 preparation for and in the conduct of trial, to address their handling at the end of the
23 litigation, and serve the ends of justice, a protective order for such information is
24 justified in this matter. It is the intent of the parties that information will not be
25 designated as confidential for tactical reasons and that nothing be so designated
26 without a good faith belief that it has been maintained in a confidential, non-public
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1 manner, and there is good cause why it should not be part of the public record of this
2 case.
3 2.

DEFINITIONS

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2.1

Action: Saltzberg v. Home Depot U.S.A., Inc., Case No. 2:17-cv-05798-

5 RGK-AS.
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2.2

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

7 of information or items under this Order.
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2.3

“CONFIDENTIAL” Information or Items: information (regardless of

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

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

13 their support staff).
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2.5

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

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

Disclosure or Discovery Material: all items or information, regardless

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

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

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

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

25 House Counsel does not include Outside Counsel of Record or any other outside
26 counsel.
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1

2.9

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

2 other legal entity not named as a Party to this action.
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2.10 Outside Counsel of Record: attorneys who are not employees of a party

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

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

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

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

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

19 from a Producing Party.
20 3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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

27 trial judge. This Order does not govern the use of Protected Material at trial.
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1 4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

3 imposed by this Order shall remain in effect until a Designating Party agrees
4 otherwise in writing or a court order otherwise directs. Final disposition shall be
5 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
6 or without prejudice; and (2) final judgment herein after the completion and
7 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
8 including the time limits for filing any motions or applications for extension of time
9 pursuant to applicable law.
10 5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection.

12 Each Party or Non-Party that designates information or items for protection under
13 this Order must take care to limit any such designation to specific material that
14 qualifies under the appropriate standards. The Designating Party must designate for
15 protection only those parts of material, documents, items, or oral or written
16 communications that qualify so that other portions of the material, documents,
17 items, or communications for which protection is not warranted are not swept
18 unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations
20 that are shown to be clearly unjustified or that have been made for an improper
21 purpose (e.g., to unnecessarily encumber the case development process or to impose
22 unnecessary expenses and burdens on other parties) may expose the Designating
23 Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it

25 designated for protection do not qualify for protection, that Designating Party must
26 promptly notify all other Parties that it is withdrawing the inapplicable designation.
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1

5.2

Manner and Timing of Designations. Except as otherwise provided in

2 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
4 under this Order must be clearly so designated before the material is disclosed or
5 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

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

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

for testimony given in depositions that the Designating Party identify

27 the Disclosure or Discovery Material on the record, before the close of the
28 deposition all protected testimony.
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1

(c)

for information produced in some form other than documentary and for

2 any other tangible items, that the Producing Party affix in a prominent place on the
3 exterior of the container or containers in which the information is stored the legend
4 “CONFIDENTIAL.” If only a portion or portions of the information warrants
5 protection, the Producing Party, to the extent practicable, shall identify the protected
6 portion(s).
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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

8 failure to designate qualified information or items does not, standing alone, waive
9 the Designating Party’s right to secure protection under this Order for such material.
10 Upon timely correction of a designation, the Receiving Party must make reasonable
11 efforts to assure that the material is treated in accordance with the provisions of this
12 Order.
13 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

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

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

Meet and Confer. The Challenging Party shall initiate the dispute

18 resolution process under Local Rule 37.1 et seq.
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6.3

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

20 the Designating Party. Frivolous challenges, and those made for an improper
21 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
22 parties) may expose the Challenging Party to sanctions. Unless the Designating
23 Party has waived or withdrawn the confidentiality designation, all parties shall
24 continue to afford the material in question the level of protection to which it is
25 entitled under the Producing Party’s designation until the Court rules on the
26 challenge.
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1 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

3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under the
6 conditions described in this Order. When the Action has been terminated, a
7 Receiving Party must comply with the provisions of section 13 below (FINAL
8 DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a

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

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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

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

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

20 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

22 disclosure is reasonably necessary for this Action and who have signed the
23 “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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1

(f)

professional jury or trial consultants, mock jurors, and Professional

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

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

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

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

7 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
8 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
9 not be permitted to keep any confidential information unless they sign the
10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
11 agreed by the Designating Party or ordered by the court. Pages of transcribed
12 deposition testimony or exhibits to depositions that reveal Protected Material may
13 be separately bound by the court reporter and may not be disclosed to anyone except
14 as permitted under this Stipulated Protective Order; and
(i)

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any mediator or settlement officer, and their supporting personnel,

16 mutually agreed upon by any of the parties engaged in settlement discussions.
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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 compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:
(a)

promptly notify in writing the Designating Party. Such notification

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

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

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

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1

(c)

cooperate with respect to all reasonable procedures sought to be

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

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4 the subpoena or court order shall not produce any information designated in this
5 action as “CONFIDENTIAL” before a determination by the court from which the
6 subpoena or order issued, unless the Party has obtained the Designating Party’s
7 permission. The Designating Party shall bear the burden and expense of seeking
8 protection in that court of its confidential material and nothing in these provisions
9 should be construed as authorizing or encouraging a Receiving Party in this Action
10 to disobey a lawful directive from another court.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a)

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

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

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

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

promptly notify in writing the Requesting Party and the Non-

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

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

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

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1

(3)

make the information requested available for inspection by the

2 Non-Party, if requested.
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(c)

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

4 14 days of receiving the notice and accompanying information, the Receiving Party
5 may produce the Non-Party’s confidential information responsive to the discovery
6 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
7 not produce any information in its possession or control that is subject to the
8 confidentiality agreement with the Non-Party before a determination by the court.
9 Absent a court order to the contrary, the Non-Party shall bear the burden and
10 expense of seeking protection in this court of its Protected Material.
11 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

13 Protected Material to any person or in any circumstance not authorized under this
14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
15 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
16 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
17 persons to whom unauthorized disclosures were made of all the terms of this Order,
18 and (d) request such person or persons to execute the “Acknowledgment and
19 Agreement to Be Bound” that is attached hereto as Exhibit A.
20 11.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

23 inadvertently produced material is subject to a claim of privilege or other protection,
24 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
26 may be established in an e-discovery order that provides for production without
27 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
28 as the parties reach an agreement on the effect of disclosure of a communication or
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1 information covered by the attorney-client privilege or work product protection, the
2 parties may incorporate their agreement in the stipulated protective order submitted
3 to the court.
4 12.

MISCELLANEOUS

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

6 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

8 Protective Order no Party waives any right it otherwise would have to object to
9 disclosing or producing any information or item on any ground not addressed in this
10 Stipulated Protective Order. Similarly, no Party waives any right to object on any
11 ground to use in evidence of any of the material covered by this Protective Order.
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12.3 Filing Protected Material. A Party that seeks to file under seal any

13 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
14 only be filed under seal pursuant to a court order authorizing the sealing of the
15 specific Protected Material at issue. If a Party's request to file Protected Material
16 under seal is denied by the court, then the Receiving Party may file the information
17 in the public record unless otherwise instructed by the court.
18 13.

FINAL DISPOSITION

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

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

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

11 measures including, without limitation, contempt proceedings and/or monetary
12 sanctions.
13 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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DATED: September 19, 2017

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

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By /s/ Shon Morgan
Shon Morgan
Attorneys for Home Depot U.S.A., Inc.

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DATED: September 19, 2017

BLUMENTHAL, NORDREHAUG &
BHOWMIK LLP

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By/s/ Victoria Rivapalacio
Victoria Rivapalacio
Attorneys for Plaintiff Katherine Saltzberg

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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25 DATED:________________________________
September 19, 2017
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/ s / Alka Sagar
27 ________________________________
Honorable Alka Sagar
28 United States Magistrate Judge
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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4 I, ______________________________________ [print or type full name], of
5 ________________ [print or type full address], declare under penalty of perjury that
6 I have read in its entirety and understand the Stipulated Protective Order that was
7 issued by the United States District Court for the Central District of California on
8 [date] in the case of Saltzberg v. Home Depot U.S.A., Inc., Case No. 2:17-cv-057989 RGK-AS. I agree to comply with and to be bound by all the terms of this Stipulated
10 Protective Order and I understand and acknowledge that failure to so comply could
11 expose me to sanctions and punishment in the nature of contempt. I solemnly
12 promise that I will not disclose in any manner any information or item that is subject
13 to this Stipulated Protective Order to any person or entity except in strict compliance
14 with the provisions of this Order.
15
I further agree to submit to the jurisdiction of the United States District Court
16 for the Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint ______________________________
19 [print or type full name] of _____________________ [print or type full address and
20 telephone number] as my California agent for service of process in connection with
21 this action or any proceedings related to enforcement of this Stipulated Protective
22 Order.
23 Date: _____________________
24 City and State where sworn and signed:_____________________
25 Printed name:______________________________
26 Signature:_________________________________
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