John C. Schiavone v. Costco Wholesale Membership, Inc. et al

Filing 24

STIPULATED PROTECTIVE ORDER by Magistrate Judge Sheri Pym (SEE ORDER FOR DETAILS). (kca)

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GIBBS & FUERST LLP
25240 HANCOCK AVENUE, SUITE 305

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MURRIETA, CA 92562

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FACSIMILE [phone]

TELEPHONE [phone]

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Michael T. Gibbs, Bar No. 076519
Thomas M. Regan, Bar No. 292430

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Attorneys for Defendant COSTCO WHOLESALE CORPORATION

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION
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JOHN C. SCHIAVONE,

)
)
Plaintiff,
)
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vs.
)
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COSTCO WHOLESALE COMPANY, et al. )
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Defendants.
)
)
)
)
)

Case No. 5:20-CV-00213-JGB-SP

STIPULATED PROTECTIVE ORDER

1. A. PURPOSES AND LIMITATIONS

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

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proprietary, or private information for which special protective from public disclosure and

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

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Accordingly, the parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer

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blanket protections on all disclosures or responses to discovery and that the protection
it affords from public disclosure extends only to the limited information or items that are

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entitled to confidential treatment under the applicable legal principles.

The parties

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further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective

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Order does not entitle them to file confidential information under seal; Civil Local Rule
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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79-5 sets forth the procedures that must be followed and the standards that will be

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applied when a party seeks permission from the court to file material under seal.
B. GOOD CAUSE STATEMENT

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This action is likely to involve valuable confidential, commercial, proprietary, or

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private information for which special protection from public disclosure and from use for
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any purpose other than prosecution of this action is warranted. Such confidential and

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proprietary materials and information consist of, among other things, confidential

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business information, information regarding confidential business practices, or other

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confidential or commercial information, information otherwise generally unavailable to

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the public, or which may be privileged or otherwise protected from disclosure under

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state or federal statutes, court rules, case decisions, or common law. Accordingly, to
expedite the flow of information, to facilitate the prompt resolution of disputes over

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confidentiality of discovery materials, to adequately protect information the parties are

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entitled to keep confidential, to ensure that the parties are permitted reasonable

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necessary uses of such material in preparation for and in the conduct of trial, to address

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their handling at the end of the litigation, and serve the ends of justice, a protective

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order for such information is justified in this matter. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and that nothing

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be so designated without a good faith belief that it has been maintained in a
confidential, non-public manner, and there is good cause why it should not be part of

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the public record of this case.
2.

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2.1 Action: John C. Schiavone v. Costco Wholesale Company, Case No. 5:20CV-00213-JGB-SP.
2.2 Challenging Party: a Party or Non-Party that challenges the designation of

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DEFINITIONS

information or items under this Order.
2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

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Statement.
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

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support staff).
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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2.5 Designating Party: a Party or Non-Party that designates information or items
that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.6 Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among
other things, testimony, transcripts, and tangible things), that are produced or generated

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in disclosures or responses to discovery in this matter.

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

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

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expert witness or as a consultant in this Action.
2.8 House Counsel: attorneys who are employees of a party to this Action.

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

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

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

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

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appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,

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

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support

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services

(e.g.,

photocopying,

videotaping,

translating,

preparing

exhibits

or

demonstrations, and organizing, storing, or retrieving data in any form or medium) and
their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL.”

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

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a Producing Party.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected

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

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
Material; and (3) any testimony, conversations, or presentations by Parties or their

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

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4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed

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by this Order shall remain in effect until a Designating Party agrees otherwise in writing
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or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)

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dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final

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judgment herein after the completion and exhaustion of all appeals, rehearings,

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remands, trials, or reviews of this Action, including the time limits for filing any motions

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or applications for extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each

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Party or Non-Party that designates information or items for protection under this Order

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must take care to limit any such designation to specific material that qualifies under the

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appropriate standards. The Designating Party must designate for protection only those

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

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

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protection is not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that

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

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

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

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Party to sanctions.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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

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

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promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2 Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
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or ordered, Disclosure or Discovery Material that qualifies for protection under this
Order 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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(a) for information in documentary form (e.g., paper or electronic documents, but

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

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Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
“CONFIDENTIAL legend”), to each page that contains protected material. If only a

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

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

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in the margins).

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

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

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

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the designation, all of the material made available for inspection shall be deemed
“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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

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

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

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

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

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protected portion(s) (e.g., by making appropriate markings in the margins).
(b) for testimony given in depositions that the Designating Party identify the

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

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

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other tangible items, that the Producing Party affix in a prominent place on the exterior

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of the container or containers in which the information is stored the legend
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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

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the Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating
Party’s right to secure protection under this Order for such material. Upon timely

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correction of a designation, the Receiving Party must make reasonable efforts to assure
that the material is treated in accordance with the provisions of this Order.

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6.

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

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

confidentiality at any time that is consistent with the Court’s Scheduling Order.
6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution

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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 the

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

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

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

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

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

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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

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

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

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Material may be disclosed only to the categories of persons and under the conditions
described in this Order. When the Action has been terminated, a Receiving Party must

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

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

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

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under this Order.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by

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the court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to
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disclose the information for this Action;

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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 whom disclosure

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is reasonably necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;

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(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional Vendors to

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

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

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custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses ,and attorneys for witnesses, in the Action

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to whom disclosure is reasonably necessary provided: (1) the deposing party requests
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that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be

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permitted to keep any confidential information unless they sign the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material may be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this Stipulated
Protective Order; and

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(i) any mediator or settlement officer, and their supporting personnel, mutually

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

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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8.

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

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

compels disclosure of any information or items designated in this Action as
“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 order to issue

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

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

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Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by

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the Designating Party whose Protected Material may be affected.

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

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

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

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

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

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of its confidential material and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive

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from another court.

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9.

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THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-

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

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

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provided by this Order. Nothing in these provisions 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, to produce

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

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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

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then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that

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

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

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

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

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Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court within 14 days

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of receiving the notice and accompanying information, the Receiving Party may produce
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the Non-Party’s confidential information responsive to the discovery request. If the Non-

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

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

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

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

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court of its Protected Material.

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10.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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

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

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

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

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whom unauthorized disclosures were made of all the terms of this Order, and (d)
request such person or persons to execute the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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11.

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PROTECTED MATERIAL

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain

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INADVERTENT

inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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

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

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

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

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

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

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12.

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MISCELLANEOUS
12.1 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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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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

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disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any ground

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

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

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

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

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Material at issue. If a Party's request to file Protected Material under seal is denied by

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the court, then the Receiving Party may file the information in the public record unless
otherwise instructed by the court.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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13.

FINAL DISPOSITION

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

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

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Protected Material to the Producing Party or destroy such material. As used in this
subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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

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

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

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

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

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(2)affirms that the Receiving Party has not retained any copies, abstracts, compilations,
summaries or any other format reproducing or capturing any of the Protected Material.

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

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

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

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

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

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this Protective Order as set forth in Section 4 (DURATION).

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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

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including, without limitations, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

DATED: November 3, 2020

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__/s/Matthew S. Manacek________________

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LARSON O’BRIEN, LLP
MATTHEW S. MANACEK
Attorneys for Plaintiff JOHN C. SCHIAVONE

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DATED: November 3, 2020

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__/s/Michael T. Gibbs____________________

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GIBBS & FUERST, LLP
MICHAEL T. GIBBS
THOMAS M. REGAN
Attorneys for Defendant COSTCO WHOLESALE CORPORATION

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: November 18, 2020
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_____________________________________

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Hon. Sheri Pym

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United States Magistrate Judge

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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[print or type full address], declare under penalty of perjury that I have read in its entirety
and understand the Stipulated Protective Order that was issued by the United States

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District Court for the Central District of California on [date] in the case of John C.

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Schiavone v. Costco Wholesale Company, Case No. 5:20-CV-00213-JGB-SP. I agree

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to comply with and to be bound by all the terms of this Stipulated Protective Order and I

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

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and punishment in the nature of contempt. I solemnly promise that I will not disclose in

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any manner any information or item that is subject to this Stipulated Protective Order to
any person or entity except in strict compliance with the provisions of this Order.

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I 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 Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this

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action. I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with this

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action or any proceedings related to enforcement of this Stipulated Protective Order.

Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________
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[PROPOSED] STIPULATED PROTECTIVE ORDER