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

Filing 24


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1 GIBBS & FUERST LLP 25240 HANCOCK AVENUE, SUITE 305 2 MURRIETA, CA 92562 3 FACSIMILE (951)816-3436 TELEPHONE (951)816-3435 4 5 Michael T. Gibbs, Bar No. 076519 Thomas M. Regan, Bar No. 292430 6 7 Attorneys for Defendant COSTCO WHOLESALE CORPORATION 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 11 12 13 14 15 16 17 18 19 JOHN C. SCHIAVONE, ) ) Plaintiff, ) ) vs. ) ) COSTCO WHOLESALE COMPANY, et al. ) ) Defendants. ) ) ) ) ) Case No. 5:20-CV-00213-JGB-SP STIPULATED PROTECTIVE ORDER 1. A. PURPOSES AND LIMITATIONS 20 Discovery in this action is likely to involve production of confidential, commercial, 21 proprietary, or private information for which special protective from public disclosure and 22 from use for any purpose other than prosecuting this litigation may be warranted. 23 Accordingly, the parties hereby stipulate to and petition the Court to enter the following 24 Stipulated Protective Order. The parties acknowledge that this Order does not confer 25 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 26 entitled to confidential treatment under the applicable legal principles. The parties 27 further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective 28 Order does not entitle them to file confidential information under seal; Civil Local Rule 155.960 1 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 79-5 sets forth the procedures that must be followed and the standards that will be 2 applied when a party seeks permission from the court to file material under seal. B. GOOD CAUSE STATEMENT 3 This action is likely to involve valuable confidential, commercial, proprietary, or 4 private information for which special protection from public disclosure and from use for 5 any purpose other than prosecution of this action is warranted. Such confidential and 6 proprietary materials and information consist of, among other things, confidential 7 business information, information regarding confidential business practices, or other 8 confidential or commercial information, information otherwise generally unavailable to 9 the public, or which may be privileged or otherwise protected from disclosure under 10 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 11 confidentiality of discovery materials, to adequately protect information the parties are 12 entitled to keep confidential, to ensure that the parties are permitted reasonable 13 necessary uses of such material in preparation for and in the conduct of trial, to address 14 their handling at the end of the litigation, and serve the ends of justice, a protective 15 order for such information is justified in this matter. It is the intent of the parties that 16 information will not be designated as confidential for tactical reasons and that nothing 17 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 18 19 the public record of this case. 2. 20 21 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 22 23 DEFINITIONS information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is 24 generated, stored or maintained) or tangible things that qualify for protection under 25 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 26 Statement. 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 27 28 support staff). 155.960 2 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 2 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 3 4 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 5 in disclosures or responses to discovery in this matter. 6 2.7 Expert: a person with specialized knowledge or experience in a matter 7 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 8 expert witness or as a consultant in this Action. 2.8 House Counsel: attorneys who are employees of a party to this Action. 9 10 House Counsel does not include Outside Counsel of Record or any other outside counsel. 11 12 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 13 2.10 Outside Counsel of Record: attorneys who are not employees of a party to 14 this Action but are retained to represent or advise a party to this Action and have 15 appeared in this Action on behalf of that party or are affiliated with a law firm which has 16 appeared on behalf of that party, and includes support staff. 2.11 Party: any party to this Action, including all of its officers, directors, 17 employees, consultants, retained experts, and Outside Counsel of Record (and their 18 support staffs). 19 20 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 21 22 23 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. 24 25 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 26 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from 27 a Producing Party. 28 \\\ 155.960 3 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only Protected 3 Material (as defined above), but also (1) any information copied or extracted from 4 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their 5 Counsel that might reveal Protected Material. 6 7 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. 8 9 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed 10 by this Order shall remain in effect until a Designating Party agrees otherwise in writing 11 or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) 12 dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final 13 judgment herein after the completion and exhaustion of all appeals, rehearings, 14 remands, trials, or reviews of this Action, including the time limits for filing any motions 15 or applications for extension of time pursuant to applicable law. 16 17 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 18 Party or Non-Party that designates information or items for protection under this Order 19 must take care to limit any such designation to specific material that qualifies under the 20 appropriate standards. The Designating Party must designate for protection only those 21 parts of material, documents, items, or oral or written communications that qualify so 22 that other portions of the material, documents, items, or communications for which 23 protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that 24 are shown to be clearly unjustified or that have been made for an improper purpose 25 (e.g., to unnecessarily encumber the case development process or to impose 26 unnecessary expenses and burdens on other parties) may expose the Designating 27 Party to sanctions. 28 \\\ 155.960 4 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 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 4 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated 5 6 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. 7 Designation in conformity with this Order requires: 8 (a) for information in documentary form (e.g., paper or electronic documents, but 9 excluding transcripts of depositions or other pretrial or trial proceedings), that the 10 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that contains protected material. If only a 11 portion or portions of the material on a page qualifies for protection, the Producing Party 12 also must clearly identify the protected portion(s) (e.g., by making appropriate markings 13 in the margins). 14 A Party or Non-Party that makes original documents available for inspection 15 need not designate them for protection until after the inspecting Party has indicated 16 which documents it would like copied and produced. During the inspection and before 17 the designation, all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 18 copied and produced, the Producing Party must determine which documents, or 19 portions thereof, qualify for protection under this Order. Then, before producing the 20 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to 21 each page that contains Protected Material. If only a portion or portions of the material 22 on a page qualifies for protection, the Producing Party also must clearly identify the 23 protected portion(s) (e.g., by making appropriate markings in the margins). (b) for testimony given in depositions that the Designating Party identify the 24 25 Disclosure or Discovery Material on the record, before the close of the deposition all protected testimony. 26 (c) for information produced in some form other than documentary and for any 27 other tangible items, that the Producing Party affix in a prominent place on the exterior 28 of the container or containers in which the information is stored the legend 155.960 5 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection, 2 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 3 4 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 5 6 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. 7 8 6. 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 9 10 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 11 process under Local Rule 37.1 et seq. 12 6.3 The burden of persuasion in any such challenge proceeding shall be on the 13 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., 14 to harass or impose unnecessary expenses and burdens on other parties) may expose 15 the Challenging Party to sanctions. Unless the Designating Party has waived or 16 withdrawn the confidentiality designation, all parties shall continue to afford the material 17 in question the level of protection to which it is entitled under the Producing Party’s designation until the Court rules on the challenge. 18 19 7. ACCESS TO AND USE OF PROTECTED MATERIAL 20 7.1 Basic Principles. A Receiving Party may use Protected Material that is 21 disclosed or produced by another Party or by a Non-Party in connection with this Action 22 only for prosecuting, defending, or attempting to settle this Action. Such Protected 23 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 24 comply with the provisions of section 13 below (FINAL DISPOSITION). 25 Protected Material must be stored and maintained by a Receiving Party at a location 26 and in a secure manner that ensures that access is limited to the persons authorized 27 under this Order. 28 \\\ 155.960 6 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 2 the court or permitted in writing by the Designating Party, a Receiving Party may 3 disclose any information or item designated “CONFIDENTIAL” only to: (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 4 employees of said Outside Counsel of Record to whom it is reasonably necessary to 5 disclose the information for this Action; 6 7 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; 8 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure 9 is reasonably necessary for this Action and who have signed the “Acknowledgment and 10 Agreement to Be Bound” (Exhibit A); (d) the court and its personnel; 11 (e) court reporters and their staff; 12 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to 13 whom disclosure is reasonably necessary for this Action and who have signed the 14 “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 15 16 custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses ,and attorneys for witnesses, in the Action 17 to whom disclosure is reasonably necessary provided: (1) the deposing party requests 18 that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be 19 permitted to keep any confidential information unless they sign the “Acknowledgment 20 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating 21 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to 22 depositions that reveal Protected Material may be separately bound by the court 23 reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order; and 24 (i) any mediator or settlement officer, and their supporting personnel, mutually 25 agreed upon by any of the parties engaged in settlement discussions. 26 \\\ 27 \\\ 28 \\\ 155.960 7 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 8. 2 OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that 3 4 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN compels disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party must: 5 6 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 7 (b) promptly notify in writing the party who caused the subpoena or order to issue 8 in the other litigation that some or all of the material covered by the subpoena or order is 9 subject to this Protective Order. Such notification shall include a copy of this Stipulated 10 Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by 11 the Designating Party whose Protected Material may be affected. 12 If the Designating Party timely seeks a protective order, the Party served with the 13 subpoena or court order shall not produce any information designated in this action as 14 “CONFIDENTIAL” before a determination by the court from which the subpoena or 15 order issued, unless the Party has obtained the Designating Party’s permission. The 16 Designating Party shall bear the burden and expense of seeking protection in that court 17 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 18 from another court. 19 20 9. 21 THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non- 22 23 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 24 25 provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. 26 (b) In the event that a Party is required, by a valid discovery request, to produce 27 a Non-Party’s confidential information in its possession, and the Party is subject to an 28 155.960 8 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 agreement with the Non-Party not to produce the Non-Party’s confidential information, 2 then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party that 3 4 some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 5 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 6 Order in this Action, the relevant discovery request(s), and a reasonably specific 7 description of the information requested; and (3) make the information requested available for inspection by the Non- 8 9 Party, if requested. (c) If the Non-Party fails to seek a protective order from this court within 14 days 10 of receiving the notice and accompanying information, the Receiving Party may produce 11 the Non-Party’s confidential information responsive to the discovery request. If the Non- 12 Party timely seeks a protective order, the Receiving Party shall not produce any 13 information in its possession or control that is subject to the confidentiality agreement 14 with the Non-Party before a determination by the court. Absent a court order to the 15 contrary, the Non-Party shall bear the burden and expense of seeking protection in this 16 court of its Protected Material. 17 10. 18 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 19 Protected Material to any person or in any circumstance not authorized under this 20 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 21 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 22 all unauthorized copies of the Protected Material, (c) inform the person or persons to 23 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 24 Bound” that is attached hereto as Exhibit A. 25 \\\ 26 \\\ 27 \\\ 28 \\\ 155.960 9 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 11. 2 PROTECTED MATERIAL PRODUCTION OF PRIVILEGED OR OTHERWISE When a Producing Party gives notice to Receiving Parties that certain 3 4 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 5 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may 6 be established in an e-discovery order that provides for production without prior 7 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 8 parties reach an agreement on the effect of disclosure of a communication or 9 information covered by the attorney-client privilege or work product protection, the 10 parties may incorporate their agreement in the stipulated protective order submitted to the court. 11 12 12. 13 14 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. 15 12.2 Right to Assert Other Objections. By stipulating to the entry of this 16 Protective Order no Party waives any right it otherwise would have to object to 17 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 18 to use in evidence of any of the material covered by this Protective Order. 19 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 20 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 21 under seal pursuant to a court order authorizing the sealing of the specific Protected 22 Material at issue. If a Party's request to file Protected Material under seal is denied by 23 the court, then the Receiving Party may file the information in the public record unless otherwise instructed by the court. 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 155.960 10 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 60 days 3 of a written request by the Designating Party, each Receiving Party must return all 4 Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 5 summaries, and any other format reproducing or capturing any of the Protected 6 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 7 must submit a written certification to the Producing Party (and, if not the same person or 8 entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, 9 where appropriate) all the Protected Material that was returned or destroyed and 10 (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. 11 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 12 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 13 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 14 consultant and expert work product, even if such materials contain Protected Material. 15 Any such archival copies that contain or constitute Protected Material remain subject to 16 this Protective Order as set forth in Section 4 (DURATION). 17 \\\ \\\ 18 \\\ 19 \\\ 20 \\\ 21 \\\ 22 \\\ 23 \\\ \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 155.960 11 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 14. Any violation of this Order may be punished by any and all appropriate measures 2 including, without limitations, contempt proceedings and/or monetary sanctions. 3 4 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: November 3, 2020 6 7 __/s/Matthew S. Manacek________________ 8 LARSON O’BRIEN, LLP MATTHEW S. MANACEK Attorneys for Plaintiff JOHN C. SCHIAVONE 9 10 11 12 DATED: November 3, 2020 13 14 __/s/Michael T. Gibbs____________________ 15 GIBBS & FUERST, LLP MICHAEL T. GIBBS THOMAS M. REGAN Attorneys for Defendant COSTCO WHOLESALE CORPORATION 16 17 18 19 20 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 21 DATED: November 18, 2020 22 23 _____________________________________ 24 Hon. Sheri Pym 25 United States Magistrate Judge 26 27 28 155.960 12 [PROPOSED] 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 that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States 5 District Court for the Central District of California on [date] in the case of John C. 6 Schiavone v. Costco Wholesale Company, Case No. 5:20-CV-00213-JGB-SP. I agree 7 to comply with and to be bound by all the terms of this Stipulated Protective Order and I 8 understand and acknowledge that failure to so comply could expose me to sanctions 9 and punishment in the nature of contempt. I solemnly promise that I will not disclose in 10 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. 11 I further agree to submit to the jurisdiction of the United States District Court for the 12 Central District of California for the purpose of enforcing the terms of this Stipulated 13 Protective Order, even if such enforcement proceedings occur after termination of this 14 action. I hereby appoint __________________________ [print or type full name] of 15 _______________________________________ [print or type full address and 16 telephone number] as my California agent for service of process in connection with this 17 18 action or any proceedings related to enforcement of this Stipulated Protective Order. Date: ______________________________________ 19 20 City and State where sworn and signed: _________________________________ 21 22 Printed name: _______________________________ 23 Signature: __________________________________ 24 25 26 27 28 155.960 13 [PROPOSED] STIPULATED PROTECTIVE ORDER

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