Holly Cordan v. Costco Wholesale Corporation et al

Filing 21

PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Stipulation for Protective Order 20 . (see document for details) (hr)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11 HOLLY CORDAN

Case No.: 2:20−cv−11096 SVW (KSx)

Plaintiff,

12

STIPULATED PROTECTIVE
ORDER

vs.

13

14 COSTCO WHOLESALE; and DOES 115

10

Defendants

16
17
18
19

1.

A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

20 proprietary, or private information for which special protection from public
21 disclosure and from use for any purpose other than prosecuting this litigation may
22 be warranted. Accordingly, the parties hereby stipulate to and petition the Court
23 to enter the following Stipulated Protective Order. The parties acknowledge that
24 this Order does not confer blanket protections on all disclosures or responses to
25 discovery and that the protection it affords from public disclosure and use extends
26 only to the limited information or items that are entitled to confidential treatment
27 under the applicable legal principles. The parties further acknowledge, as set forth
28 in Section 12.3, below, that this Stipulated Protective Order does not entitle them
1

STIPULATED PROTECTIVE ORDER

1 to file confidential information under seal; Civil Local Rule 79-5 sets forth the
2 procedures that must be followed and the standards that will be applied when a party
3 seeks permission from the court to file material under seal.
4

B. GOOD CAUSE STATEMENT

5

This action is likely to involve trade secrets, customer and pricing lists and

6 other valuable research, development, commercial, financial, technical and/or
7 proprietary information for which special protection from public disclosure and from
8 use for any purpose other than prosecution of this action is warranted. Such
9 confidential and proprietary materials and information consist of, among other
10 things, confidential business information regarding confidential business practices,
11 or other confidential research, development, or commercial information (including
12 information implicating privacy rights of third parties), information otherwise
13 generally unavailable to the public, or which may be privileged or otherwise
14 protected from disclosure under state or federal statutes, court rules, case decisions,
15 or common law.
16

Accordingly, to expedite the flow of information, to facilitate the prompt

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

Specifically, as of the date of this filing,

has requested

27 the following documents that the parties agree that good cause exists to deem
28 the materials confidential. These materials are:
2
STIPULATED PROTECTIVE ORDER

1

a.

inspections, insofar as they are responsive to discovery requests;

2
3

b.

Warehouse surveillance video, insofar as it is responsive to discovery
requests; and

4
5

Policies and procedures regarding warehouse maintenance and

c.

Documents utilized by Costco to facilitate compliance with policy and
procedures concerning warehouse maintenance and inspection.

6
7
8

2.

9

2.1

DEFINITIONS
Action: Holly Cordan v. Costco Wholesale, case number

10 2:20−cv−11096 SVW (KSx).
11

2.2

“CONFIDENTIAL” Information or Items: This Stipulation shall

12 govern the use and dissemination of the following categories of Confidential
13 information (regardless of how it is generated, stored or maintained) or tangible
14 things that qualify for protection under Federal Rule of Civil Procedure 26(c), and
15 as specified above in the Good Cause Statement;
16

d.

inspections, insofar as they are responsive to discovery requests;

17
18

e.
f.

Documents utilized by Costco to facilitate compliance with policy and
procedures concerning warehouse maintenance and inspection.

21
22

Warehouse surveillance video, insofar as it is responsive to discovery
requests; and

19
20

Policies and procedures regarding warehouse maintenance and

2.3

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

23 as their support staff).
24

2.5

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

25 items that it produces in disclosures or in responses to discovery as
26 “CONFIDENTIAL.”
27

2.6

Disclosure or Discovery Material: all items or information, regardless

28 of the medium or manner in which it is generated, stored, or maintained (including,
3
STIPULATED PROTECTIVE ORDER

1 among other things, testimony, transcripts, and tangible things), that are produced or
2 generated in disclosures or responses to discovery in this matter.
3

2.7

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

4 pertinent to the litigation who has been retained by a Party or its counsel to serve as
5 an expert witness or as a consultant in this Action.
6

2.8

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

7 House Counsel does not include Outside Counsel of Record or any other outside
8 counsel.
9

2.9

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

10 other legal entity not named as a Party to this action.
11

2.10 Outside Counsel of Record:

attorneys who are not employees of a

12 party to this Action but are retained to represent or advise a party to this Action and
13 have appeared in this Action on behalf of that party or are affiliated with a law firm
14 which has appeared on behalf of that party, and includes support staff.
15

2.11 Party: any party to this Action, including all of its officers, directors,

16 employees, consultants, retained experts, and Outside Counsel of Record (and their
17 support staffs).
18

2.12 Producing Party: a Party or Non-Party that produces Disclosure or

19 Discovery Material in this Action.
20

2.13 Professional Vendors: persons or entities that provide litigation support

21 services (e.g., photocopying, videotaping, translating, preparing exhibits or
22 demonstrations, and organizing, storing, or retrieving data in any form or medium)
23 and their employees and subcontractors.
24

2.14 Protected Material: any Disclosure or Discovery Material that is

25 designated as “CONFIDENTIAL.”
26

2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

27 from a Producing Party.
28

3.

SCOPE
4
STIPULATED PROTECTIVE ORDER

1

The protections conferred by this Stipulation and Order cover not only

2 Protected Material (as defined above), but also (1) any information copied or
3 extracted from Protected Material; (2) all copies, excerpts, summaries, or
4 compilations of Protected Material; and (3) any testimony, conversations, or
5 presentations by Parties or their Counsel that might reveal Protected Material.
6

Any use of Protected Material at trial shall be governed by the orders of the

7 trial judge. This Order does not govern the use of Protected Material at trial.
8

4.

DURATION

9

Even after final disposition of this litigation, the confidentiality obligations

10 imposed by this Order shall remain in effect until a Designating Party agrees
11 otherwise in writing or a court order otherwise directs. Final disposition shall be
12 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
13 or without prejudice; and (2) final judgment herein after the completion and
14 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
15 including the time limits for filing any motions or applications for extension of time
16 pursuant to applicable law.
17

5.

DESIGNATING PROTECTED MATERIAL

18

5.1

Exercise of Restraint and Care in Designating Material for Protection.

19 Each Party or Non-Party that designates information or items for protection under
20 this Order must take care to limit any such designation to specific material that
21 qualifies under the appropriate standards. The Designating Party must designate for
22 protection only those parts of material, documents, items, or oral or written
23 communications that qualify so that other portions of the material, documents, items,
24 or communications for which protection is not warranted are not swept unjustifiably
25 within the ambit of this Order.
26

Mass, indiscriminate, or routinized designations are prohibited. Designations

27 that are shown to be clearly unjustified or that have been made for an improper
28 purpose (e.g., to unnecessarily encumber the case development process or to impose
5
STIPULATED PROTECTIVE ORDER

1 unnecessary expenses and burdens on other parties) may expose the Designating
2 Party to sanctions.
3

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

4 designated for protection do not qualify for protection, that Designating Party must
5 promptly notify all other Parties that it is withdrawing the inapplicable designation.
6

5.2

Manner and Timing of Designations. Except as otherwise provided in

7 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
8 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
9 under this Order must be clearly so designated before the material is disclosed or
10 produced.
11

Designation in conformity with this Order requires:

12

(a)

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

13 documents, but excluding transcripts of depositions or other pretrial or trial
14 proceedings), that the Producing Party affix at a minimum, the legend
15 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
16 contains protected material. If only a portion or portions of the material on a page
17 qualifies for protection, the Producing Party also must clearly identify the protected
18 portion(s) (e.g., by making appropriate markings in the margins).
19

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

20 need not designate them for protection until after the inspecting Party has indicated
21 which documents it would like copied and produced. During the inspection and
22 before the designation, all of the material made available for inspection shall be
23 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
24 documents it wants copied and produced, the Producing Party must determine which
25 documents, or portions thereof, qualify for protection under this Order. Then, before
26 producing the specified documents, the Producing Party must affix the
27 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
28 portion or portions of the material on a page qualifies for protection, the Producing
6
STIPULATED PROTECTIVE ORDER

1 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
2 markings in the margins).
3

(b)

for testimony given in depositions that the Designating Party identify

4 the Disclosure or Discovery Material on the record, before the close of the deposition
5 all protected testimony.
6

(c)

for information produced in some form other than documentary and for

7 any other tangible items, that the Producing Party affix in a prominent place on the
8 exterior of the container or containers in which the information is stored the legend
9 “CONFIDENTIAL.” If only a portion or portions of the information warrants
10 protection, the Producing Party, to the extent practicable, shall identify the protected
11 portion(s).
12

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

13 failure to designate qualified information or items does not, standing alone, waive
14 the Designating Party’s right to secure protection under this Order for such material.
15 Upon timely correction of a designation, the Receiving Party must make reasonable
16 efforts to assure that the material is treated in accordance with the provisions of this
17 Order.
18

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

19

6.1

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

20 designation of confidentiality at any time that is consistent with the Court’s
21 Scheduling Order.
22

6.2

Meet and Confer.

The Challenging Party shall initiate the dispute

23 resolution process under Local Rule 37.1 et seq.
24

6.3

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

25 the Designating Party. Frivolous challenges, and those made for an improper
26 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
27 parties) may expose the Challenging Party to sanctions. Unless the Designating Party
28 has waived or withdrawn the confidentiality designation, all parties shall continue to
7
STIPULATED PROTECTIVE ORDER

1 afford the material in question the level of protection to which it is entitled under the
2 Producing Party’s designation until the Court rules on the challenge.
3

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

4

7.1

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

5 disclosed or produced by another Party or by a Non-Party in connection with this
6 Action only for prosecuting, defending, or attempting to settle this Action. Such
7 Protected Material may be disclosed only to the categories of persons and under the
8 conditions described in this Order. When the Action has been terminated, a
9 Receiving Party must comply with the provisions of section 13 below (FINAL
10 DISPOSITION).
11

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

12 location and in a secure manner that ensures that access is limited to the persons
13 authorized under this Order.
14

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

Party

may

disclose

any

information

or

item

designated

17 “CONFIDENTIAL” only to:
18

(a)

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

19

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

20

to disclose the information for this Action;

21
22
23

(b)

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

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

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

24

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

25

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

26

(d)

the court and its personnel;

27

(e)

court reporters and their staff;

28
8
STIPULATED PROTECTIVE ORDER

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);
4

(g)

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

5 custodian or other person who otherwise possessed or knew the information;
6

(h)

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
15

(i)

any mediator or settlement officer, and their supporting personnel,

16 mutually agreed upon by any of the parties engaged in settlement discussions.
17

8.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

18 PRODUCED IN OTHER LITIGATION
19

If a Party is served with a subpoena or a court order issued in other litigation

20 that compels disclosure of any information or items designated in this Action as
21 “CONFIDENTIAL,” that Party must:
22

(a)

promptly notify in writing the Designating Party. Such notification

23 shall include a copy of the subpoena or court order;
24

(b)

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

25 to issue in the other litigation that some or all of the material covered by the subpoena
26 or order is subject to this Protective Order. Such notification shall include a copy of
27 this Stipulated Protective Order; and
28
9
STIPULATED PROTECTIVE ORDER

1

(c)

cooperate with respect to all reasonable procedures sought to be

2 pursued by the Designating Party whose Protected Material may be affected.
3

If the Designating Party timely seeks a protective order, the Party served with

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.
11

9.

A

NON-PARTY’S

PROTECTED

12 TO

BE PRODUCED IN THIS LITIGATION

13

(a)

MATERIALS SOUGHT

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

14 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
15 produced by Non-Parties in connection with this litigation is protected by the
16 remedies and relief provided by this Order. Nothing in these provisions should be
17 construed as prohibiting a Non-Party from seeking additional protections.
18

(b)

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

19 produce a Non-Party’s confidential information in its possession, and the Party is
20 subject to an agreement with the Non-Party not to produce the Non-Party’s
21 confidential information, then the Party shall:
22

(1)

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

23 some or all of the information requested is subject to a confidentiality agreement
24 with a Non-Party;
25

(2)

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

26 Protective Order in this Action, the relevant discovery request(s), and a reasonably
27 specific description of the information requested; and
28
10
STIPULATED PROTECTIVE ORDER

1

(3)

make the information requested available for inspection by the Non-

2 Party, if requested.
3

(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 expense
10 of seeking protection in this court of its Protected Material.
11

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

12

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
17 or persons to whom unauthorized disclosures were made of all the terms of this
18 Order, 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.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

21 OTHERWISE PROTECTED MATERIAL
22

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 prior
27 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
28 parties reach an agreement on the effect of disclosure of a communication or
11
STIPULATED PROTECTIVE ORDER

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

5

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.
7

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.
12

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

19

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
28 destroyed and (2)affirms that the Receiving Party has not retained any copies,
12
STIPULATED PROTECTIVE ORDER

1 abstracts, compilations, summaries or any other format reproducing or capturing any
2 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
3 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
4 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
5 reports, attorney work product, and consultant and expert work product, even if such
6 materials contain Protected Material. Any such archival copies that contain or
7 constitute Protected Material remain subject to this Protective Order as set forth in
8 Section 4 (DURATION).
9 ///
10 ///
11 ///
12 ///
13 ///
14 ///
15 ///
16 ///
17 ///
18 ///
19 ///
20 ///
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
13
STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I,

_____________________________

[print

or

type

full

name],

of

4 _________________ [print or type full address], declare under penalty of perjury
5 that I have read in its entirety and understand the Stipulated Protective Order that
6 was issued by the United States District Court for the Central District of California
7 on [date] in the case of ___________ [insert formal name of the case and the
8 number and initials assigned to it by the court]. I agree to comply with and to be
9 bound by all the terms of this Stipulated Protective Order and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and punishment
11 in the nature of contempt. I solemnly promise that I will not disclose in any manner
12 any information or item that is subject to this Stipulated Protective Order to any
13 person or entity except in strict compliance with the provisions of this Order.
14 I further agree to submit to the jurisdiction of the United States District Court for the
15 Central District of California for the purpose of enforcing the terms of this Stipulated
16 Protective Order, even if such enforcement proceedings occur after termination of
17 this action. I hereby appoint __________________________ [print or type full
18 name] of _______________________________________ [print or type full address
19 and telephone number] as my California agent for service of process in connection
20 with this action or any proceedings related to enforcement of this Stipulated
21 Protective Order.
22 Date: ______________________________________
23 City and State where sworn and signed: _________________________________
24
25 Printed name: _______________________________
26
27 Signature: __________________________________
28
15
STIPULATED PROTECTIVE ORDER