Jessica Ivone Hernandez v. Target Corporation et al

Filing 16

ORDER APPROVING STIPULATED PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation for Protective Order 15 (dts)

1 Ashley M. Brettingen (SBN 315703)
HINSHAW & CULBERTSON LLP
2 11601 Wilshire Blvd.
Suite 800
3 Los Angeles, CA 90025
Telephone: [phone]
4 Facsimile: 310-909-8001
[e-mail]
5 Attorneys for Defendant
TARGET CORPORATION
6
Todd M. Friedman (SBN 216752)
7
Adrian R. Bacon (SBN 280332)
8 Meghan E. George (SBN 274525)
Thomas E. Wheeler (SBN 308789)
9
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
10 21550 Oxnard St. Suite 780,
Woodland Hills, CA 91367
11
Phone: [phone]
12 Fax: [phone]
13 [e-mail]
[e-mail]
14 [e-mail]
15 [e-mail]
Attorneys for Plaintiff
16
UNITED STATES DISTRICT COURT
17
CENTRAL DISTRICT OF CALIFORNIA
18
Case No. 5:17-cv-02554-JAK (KKx)
JESSICA IVONE HERNANDEZ,
19
(Honorable John A. Kronstadt,
Plaintiff,
20
Courtroom “10B”)
vs.
21
STIPULATED PROTECTIVE
ORDER
TARGET CORPORATION, and DOES
22 1-10, inclusive,
23
Removal Filed:
December 28, 2017
Defendants.
Motion Cut-Off: TBA
24
Discovery Cut-Off: TBA
25
26
27
28

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STIPULATED PROTECTIVE ORDER
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Plaintiff Jessica Ivone Hernandez (“Plaintiff”) and Defendant Target

2

Corporation (“Target”) hereby stipulate as follows:

3

1.

PURPOSES AND LIMITATIONS

4

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

5

proprietary, or private information for which special protection from public

6

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

7

be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

8

enter the following Stipulated Protective Order. The parties acknowledge that this

9

Order does not confer blanket protections on all disclosures or responses to

10

discovery and that the protection it affords from public disclosure and use extends

11

only to the limited information or items that are entitled to confidential treatment

12

under the applicable legal principles. The parties further acknowledge, as set forth

13

in Section 13.3, below, that this Stipulated Protective Order does not entitle them to

14

file confidential information under seal; Civil Local Rule 79-5 sets forth the

15

procedures that must be followed and the standards that will be applied when a party

16

seeks permission from the court to file material under seal.

17

2.

GOOD CAUSE STATEMENT

18

In light of the nature of the claims and allegations in this case on the parties’

19

representations that discovery in this case will involve the production of

20

confidential and proprietary materials and information consisting of, among other

21

things, confidential business or financial information, information regarding

22

confidential business practices and procedures, information otherwise generally

23

unavailable to the public, or which may be privileged or otherwise protected from

24

disclosure under state or federal statutes, court rules, case decisions, or common

25

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

26

resolution of disputes over confidentiality of discovery materials, to adequately

27

protect information the parties are entitled to keep confidential, to ensure that the

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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parties are permitted reasonable necessary uses of such material in preparation for

2

and in the conduct of trial, to address their handling at the end of the litigation, and

3

serve the ends of justice, a protective order for such information is justified in this

4

matter. It is the intent of the parties that information will not be designated as

5

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

6

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

7

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

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3.

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DEFINITIONS
3.1

Action: Jessica Ivone Hernandez v. Target Corporation, et al., Case

No. 5:17-cv-02554-JAK(KKx) .
3.2

Challenging Party:

a Party or Non-Party that challenges the

designation of information or items under this Order.
3.3

“CONFIDENTIAL” Information or Items: information (regardless of

14

how it is generated, stored or maintained) or tangible things that qualify for

15

protection under Federal Rule of Civil Procedure 26(c), and as specified above in

16

the Good Cause Statement.

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18
19

3.4

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

their support staff).
3.5

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

20

items that it produces in disclosures or in responses to discovery as

21

“CONFIDENTIAL.”

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3.6

Disclosure or Discovery Material: all items or information, regardless

23

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

24

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

25

generated in disclosures or responses to discovery in this matter.

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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3.7

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

2

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

3

an expert witness or as a consultant in this Action.

4

3.8

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

5

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

6

counsel.

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8

3.9

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

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

9

3.10 Outside Counsel of Record: attorneys who are not employees of a

10

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

11

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

12

which has appeared on behalf of that party, and includes support staff.

13

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

14

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

15

support staffs).

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3.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
3.13 Professional Vendors:

persons or entities that provide litigation

19

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

20

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

21

and their employees and subcontractors.

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24
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3.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
3.15 Receiving Party:

a Party that receives Disclosure or Discovery

Material from a Producing Party.

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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4.

SCOPE

2

The protections conferred by this Stipulation and Order cover not only

3

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

4

extracted from Protected Material; (2) all copies, excerpts, summaries, or

5

compilations of Protected Material; and (3) any testimony, conversations, or

6

presentations by Parties or their Counsel that might reveal Protected Material. Any

7

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

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

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5.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

11

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

12

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

13

deemed to be the later of (1) dismissal of all claims and defenses in this Action, with

14

or without prejudice; and (2) final judgment herein after the completion and

15

exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

16

including the time limits for filing any motions or applications for extension of time

17

pursuant to applicable law.

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6.

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DESIGNATING PROTECTED MATERIAL
6.1

Exercise of Restraint and Care in Designating Material for Protection.

20

Each Party or Non-Party that designates information or items for protection under

21

this Order must take care to limit any such designation to specific material that

22

qualifies under the appropriate standards. The Designating Party must designate for

23

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

24

communications that qualify so that other portions of the material, documents,

25

items, or communications for which protection is not warranted are not swept

26

unjustifiably within the ambit of this Order.

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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Mass, indiscriminate, or routinized designations are prohibited. Designations

2

that are shown to be clearly unjustified or that have been made for an improper

3

purpose (e.g., to unnecessarily encumber the case development process or to impose

4

unnecessary expenses and burdens on other parties) may expose the Designating

5

Party to sanctions.

6

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

7

designated for protection do not qualify for protection, that Designating Party must

8

promptly notify all other Parties that it is withdrawing the inapplicable designation.

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6.2

Manner and Timing of Designations. Except as otherwise provided in

10

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

11

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

12

under this Order must be clearly so designated before the material is disclosed or

13

produced.

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15

Designation in conformity with this Order requires:
(a)

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

16

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

17

proceedings), that the Producing Party affix at a minimum, the legend

18

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

19

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

20

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

21

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

23

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

24

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

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

26

deemed “CONFIDENTIAL.”

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documents it wants copied and produced, the Producing Party must determine which

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

After the inspecting Party has identified the

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documents, or portions thereof, qualify for protection under this Order.

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before producing the specified documents, the Producing Party must affix the

3

“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

4

portion or portions of the material on a page qualifies for protection, the Producing

5

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

6

markings in the margins).

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(b)

Then,

for testimony given in depositions that the Designating Party

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identify the Disclosure or Discovery Material on the record, before the close of the

9

deposition all protected testimony.

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(c)

for information produced in some form other than documentary

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

12

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

13

legend “CONFIDENTIAL.”

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warrants protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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6.3

If only a portion or portions of the information

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

20

efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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7.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

Timing of Challenges.

Any Party or Non-Party may challenge a

24

designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

7.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
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7.3

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

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the Designating Party.

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

4

parties) may expose the Challenging Party to sanctions. Unless the Designating

5

Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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8.

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Frivolous challenges, and those made for an improper

ACCESS TO AND USE OF PROTECTED MATERIAL
8.1

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

11

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

12

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

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

14

conditions described in this Order.

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

When the Action has been terminated, a

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

18

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

19

authorized under this Order.

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8.2

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

21

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

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Receiving

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“CONFIDENTIAL” only to:

24

(a)

Party

may

disclose

any

information

or

item

designated

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

25

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

26

necessary to disclose the information for this Action;

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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(b)

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

of the 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

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

5

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

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

11

A);

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(g)

the author or recipient of a document containing the information

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

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(h)

during their depositions, witnesses ,and attorneys for witnesses,

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in the Action to whom disclosure is reasonably necessary provided:

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deposing party requests that the witness sign the form attached as Exhibit 1 hereto;

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and (2) they will not be permitted to keep any confidential information unless they

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sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless

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otherwise agreed by the Designating Party or ordered by the court.

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material may be separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Stipulated Protective Order; and

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(i)

(1) the

Pages of

any mediator or settlement officer, and their supporting

24

personnel, mutually agreed upon by any of the parties engaged in settlement

25

discussions.

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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

4

that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such

notification shall include a copy of the subpoena or court order;

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(b)

promptly notify in writing the party who caused the subpoena or

9

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

10

subpoena or order is subject to this Protective Order. Such notification shall include

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a copy of this Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be

13

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

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

15

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

16

as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

18

permission. The Designating Party shall bear the burden and expense of seeking

19

protection in that court of its confidential material and nothing in these provisions

20

should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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10.

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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

25

by a Non-Party in this Action and designated as “CONFIDENTIAL.”

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information produced by Non-Parties in connection with this litigation is protected

Such

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11601 Wilshire Blvd.
Suite 800
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310-909-8000

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by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional protections.

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(b)

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

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

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

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confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the

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

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confidentiality agreement with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the

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

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reasonably specific description of the information requested; and

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(3)

make the information requested available for inspection by

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the Non-Party, if requested.

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(c)

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

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

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

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

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

20

the confidentiality agreement with the Non-Party before a determination by the

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court. Absent a court order to the contrary, the Non-Party shall bear the burden and

22

expense of seeking protection in this court of its Protected Material.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

25

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

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

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

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11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

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

2

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

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

4

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

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12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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

10

Procedure 26(b)(5)(B).

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procedure may be established in an e-discovery order that provides for production

12

without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and

13

(e), insofar as the parties reach an agreement on the effect of disclosure of a

14

communication or information covered by the attorney-client privilege or work

15

product protection, the parties may incorporate their agreement in the stipulated

16

protective order submitted to the court.

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13.

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19

This provision is not intended to modify whatever

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

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

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

21

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

22

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

23

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

24

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

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13.3 Filing Protected Material. A Party that seeks to file under seal any

26

Protected Material must comply with Civil Local Rule 79-5. Protected Material

27

may only be filed under seal pursuant to a court order authorizing the sealing of the

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11601 Wilshire Blvd.
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310-909-8000

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specific Protected Material at issue. If a Party's request to file Protected Material

2

under seal is denied by the court, then the Receiving Party may file the information

3

in the public record unless otherwise instructed by the court.

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14.

FINAL DISPOSITION

5

After the final disposition of this Action, as defined in Section 5, within 60

6

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

7

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

8

this Section, “all Protected Material” includes all copies, abstracts, compilations,

9

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

10

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

11

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

12

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

13

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

14

destroyed and (2) affirms that the Receiving Party has not retained any copies,

15

abstracts, compilations, summaries or any other format reproducing or capturing any

16

of the Protected Material. Notwithstanding this provision, Counsel are entitled to

17

retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

18

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

19

reports, attorney work product, and consultant and expert work product, even if such

20

materials contain Protected Material. Any such archival copies that contain or

21

constitute Protected Material remain subject to this Protective Order as set forth in

22

Section 5.

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15.

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

24

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

25

sanctions.

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11601 Wilshire Blvd.
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310-909-8000

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: March 9, 2018

/s/ Todd M. Friedman
Todd M. Friedman
Attorneys for Plaintiff

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6

DATED: March 9, 2018

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HINSHAW & CULBERTSON LLP
/s/ Ashley M. Brettingen
Ashley M. Brettingen
Attorneys for Defendant Target Corporation

8
9

LAW OFFICES OF TODD M. FRIEDMAN, P.C.

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

3/12/18

UNITED STATES DISTRICT COURT

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Hon. Kenly Kiya Kato
U. S. Magistrate Judge

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11601 Wilshire Blvd.
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310-909-8000

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EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of

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

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

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

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on [date] in the case of ___________ [insert formal name of the case and the

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number and initials assigned to it by the court]. I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment

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in the nature of contempt. I solemnly promise that I will not disclose in any manner

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any information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the provisions of this Order. I

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

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

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint __________________________ [print or

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type full name] of _______________________________________ [print or type

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full address and telephone number] as my California agent for service of process in

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connection with this action or any proceedings related to enforcement of this

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Stipulated Protective Order.

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Date:

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City and State where sworn and signed:
Printed name:

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HINSHAW & CULBERTSON LLP
11601 Wilshire Blvd.
Suite 800
Los Angeles, CA 90025
310-909-8000

Signature:
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STIPULATED PROTECTIVE ORDER
Case No. 5:17-cv-02554-JAK (KKx)
301332632v1 1004493