James Boswell et al v. Costco Wholesale Corporation

Filing 41

STIPULATED PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick: See document for further information. (lwag)

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LAW OFFICE OF FRANK J.
THE LAW OFFICE OF
BROCCOLO
PAUL K. JOSEPH, PC
Frank J. Broccolo (SBN 210711)
PAUL K. JOSEPH (287057)
[e-mail]
[e-mail]
4125 W. Pt. Loma Blvd. No. 206
7083 Hollywood Boulevard, Suite 4014
San Diego, CA 92110
Los Angeles, CA 90028
Phone: [phone]
Telephone: [phone]
Fax: [phone]
Counsel for Defendant
THE LAW OFFICE OF
Costco Wholesale Corporation
JACK FITZGERALD, PC
JACK FITZGERALD (SBN 257370)
[e-mail]
TREVOR M. FLYNN (SBN 253362)
[e-mail]
MELANIE PERSINGER (SBN 275423)
[e-mail]
Hillcrest Professional Building
3636 Fourth Avenue, Suite 202
San Diego, California 92103
Phone: [phone]
Fax: [phone]
Counsel for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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JAMES BOSWELL and MICHELLE
SALAZAR-NAVARRO, on behalf of
themselves, all others similarly situated and
the general public,

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STIPULATED PROTECTIVE
ORDER

Plaintiffs,

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Case No: 8:16-cv-00278-DOC-DFM

[C.D. CAL. CIV. L.R. 7-1]

v.
COSTCO WHOLESALE CORPORATION,
Defendant.

Discovery Document:
Referred to Magistrate Judge
Douglas F. McCormick

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Boswell et al. v. Costco Wholesale Corp., No. 16-cv-278-DOC-DFM
STIPULATED PROTECTIVE ORDER

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1.

GOOD CAUSE STATEMENT

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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

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warranted, including Costco Wholesale Corporation’s (“Costco’s”) non-public financial

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information (e.g., reports showing revenues and costs associated with its products, etc.);

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Costco’s agreements with third-parties and/or other documents exchanged with them, to the

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extent that they constitute and/or contain non-public, confidential information (e.g.,

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information that sets forth pricing, volume, manufacturing processes, etc.); and Plaintiffs’

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personal and confidential information. Accordingly, the parties hereby stipulate to and

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petition the Court to enter this Stipulated Protective Order, in order to expedite the flow of

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information and protect information that the parties are entitled to keep confidential. The

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parties acknowledge that this Order does not confer blanket protections on all disclosures or

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responses to discovery and that the protection it affords from public disclosure and use

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

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

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Section 12.3, below, that this Stipulated Protective Order does not entitle them to file

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confidential information under seal, and that Civil Local Rule 79-5 sets forth the procedures

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

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from the Court to file material under seal.

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2.

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DEFINITIONS
2.1

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

information or items under this Order.
2.2

“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 Federal

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Rule of Civil Procedure 26(c).

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STIPULATED PROTECTIVE ORDER

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2.3

Counsel: Outside counsel hired by a Party and House Counsel (as well as their

support staff).
2.4

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

that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5

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

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things, testimony, transcripts, and tangible things), that are produced or generated in

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disclosures or responses to discovery in this matter.

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2.6

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.

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2.7

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

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8

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

legal entity not named as a Party to this action.
2.9

Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this

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action on behalf of that party or are affiliated with a law firm which has appeared on behalf

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of that party (as well as their support staff).

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2.10 Party:

any party to this action, including all of its officers, directors,

employees, consultants, retained experts, and Counsel (and their support staff).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
2.12 Professional Vendors:

persons or entities that provide litigation support

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

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

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subcontractors that are hired by a Party or their Counsel.

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STIPULATED PROTECTIVE ORDER

2.13 Protected Material: any Disclosure or Discovery Material that is designated as

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“CONFIDENTIAL.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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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 Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3)

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any testimony, conversations, or presentations by Parties or their Counsel that might reveal

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Protected Material. However, the protections conferred by this Stipulation and Order do not

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cover the following information: (a) any information that is in the public domain at the time

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of disclosure to a Receiving Party or becomes part of the public domain after its disclosure

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to a Receiving Party as a result of publication not involving a violation of this Order,

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including becoming part of the public record through trial or otherwise; and (b) any

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information known to the Receiving Party prior to the disclosure or obtained by the

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Receiving Party after the disclosure from a source who obtained the information lawfully

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and under no obligation of confidentiality to the Designating Party. Any use of Protected

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Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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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 or

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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, remands,

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

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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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materials, documents, items, or oral or written communications that qualify – so that other

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materials, documents, items, or communications for which protection is not warranted are

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not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or delay the case development process or to impose unnecessary

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expenses and burdens on other parties) may expose the Designating Party to sanctions. If it

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

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protection do not qualify for protection, that Designating Party must promptly notify all

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other Parties that it is withdrawing the mistaken designation.

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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 or

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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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 images of

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documents (e.g., .pdf, .jpg, .tiff etc.), but excluding transcripts of depositions or other

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pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL”

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to each page that contains protected material or, in the case of responses to interrogatories

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or requests for admission, a statement that the information provided is “CONFIDENTIAL”

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in the response.

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

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

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indicated which material 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 deemed

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“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 qualify for

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protection under this Order. Then, before producing the specified documents, the Producing

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Party must affix the “CONFIDENTIAL” legend to each page that contains Protected

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Material.

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(b)

for testimony given in deposition or in other pretrial proceedings, that the

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Designating Party identify (a) on the record, before the close of the deposition, hearing, or

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other proceeding; or (b) within thirty (30) days of receipt of a transcript of that deposition or

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proceeding (other than a rough transcript), all protected testimony.
(c)

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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 of

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the container or containers in which the information or item is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information stored in a container

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

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protected portion(s).
5.3

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Inadvertent Failures to Designate. An inadvertent failure to designate qualified

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information or items does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. Upon correction of such an inadvertent failure

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to designate qualified information or items, the Receiving Party must make reasonable

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

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges.

Any Party may challenge a designation of

confidentiality at any time. Unless a prompt challenge to a Designating Party’s
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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party

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does not waive its right to challenge a confidentiality designation by electing not to mount a

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challenge promptly after the original designation is disclosed.
6.2

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Meet and Confer. The Challenging Party shall initiate the dispute resolution

process under Civil Local Rule 37-1, et seq.
6.3

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Judicial Intervention. The burden of persuasion in any such challenge shall be

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on the Designating Party. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose 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 in

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question the level of protection to which it is entitled under the Producing Party’s

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designation until the Court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
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 case only

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for prosecuting, defending, or attempting to settle this litigation. Such Protected Material

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may be disclosed only to the categories of persons and under the conditions described in

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this Order. When the litigation has been terminated, a Receiving Party must comply with

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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 under

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this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the Court or permitted in writing by the Designating Party, a Receiving Party

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may disclose any information or item designated “CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Counsel, as well as employees of said Counsel;
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STIPULATED PROTECTIVE ORDER

(b)

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

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

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

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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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 and mock jurors who have signed the

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

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Professional Vendors to whom disclosure is reasonably necessary for this

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litigation (provided that a representative of each vendor shall be made aware of and confirm

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in writing that the vendor will comply with the Protective Order); and
(h)

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during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary. Pages of transcribed deposition testimony or exhibits to depositions

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that reveal Protected Material must be separately bound by the court reporter and may not

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be disclosed to anyone except as permitted under this Stipulated Protective Order.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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

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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;
(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

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STIPULATED PROTECTIVE ORDER

(c)

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cooperate with respect to all reasonable procedures sought to be pursued by 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 order

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

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

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material – and nothing in these provisions should be construed as authorizing or

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encouraging a Receiving Party in this action to disobey a lawful directive from another

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court.

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9.

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

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IN THIS LITIGATION

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(a)

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

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in this action and designated as “CONFIDENTIAL.” Such information produced by Non-

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Parties in connection with this litigation is protected by the remedies and relief provided by

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this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from

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seeking additional protections.

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(b)

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

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

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

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the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party that some or
all of the information requested is subject to a confidentiality agreement with a Non-Party;

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

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this litigation, the relevant discovery request(s), and a reasonably specific description of the

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information requested; and

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(3) make the information requested available for inspection by the Non-Party.
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(c) If the Non-Party fails to object or seek a protective order from this court within

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14 days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request. If the

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Non-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 with

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

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Non-Party shall bear the burden and expense of seeking protection in this Court of its

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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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 Stipulated

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

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

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

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unauthorized disclosures were made of all the terms of this Order, and (d) request such

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person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is

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attached hereto as Exhibit A.

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11.

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 inadvertently

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

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the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). The

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production of a privileged or work-product-protected document, whether inadvertent or

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otherwise, is not a waiver of privilege or protection from discovery in this case or in any

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other federal or state proceeding. For example, the mere production of privileged or work-

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product-protected documents in this case as part of a mass production is not itself a waiver

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in this case or in any other federal or state proceeding. This provision shall not prevent a

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Party from asserting that any claimed privilege or work product protection was waived for

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any reason other than its inadvertent production in this litigation.

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12.

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

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MISCELLANEOUS

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 Protective

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

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producing any information or item. Similarly, no Party waives any right to object on any

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

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12.3 Filing Protected Material. Without written permission from the Designating

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Party or a court order secured after appropriate notice to all interested persons, a Party may

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not file in the public record in this action any Protected Material. A Party that seeks to file

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

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

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the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order

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will issue only upon a request establishing that the Protected Material at issue is privileged,

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protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving

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Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is

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denied by the Court, then the Receiving Party may file the information in the public record

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pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the Court.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in paragraph 4,

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each Receiving Party must return all Protected Material to the Producing Party or destroy

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such material. As used in this subdivision, “all Protected Material” includes all copies,

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

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

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

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

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

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

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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. Any

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

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Protective Order as set forth in Section 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: August 2, 2016

Dated: August 2, 2016

/s/ Jack Fitzgerald
By: Jack Fitzgerald
THE LAW OFFICE OF JACK
FITZGERALD, PC

/s/ Frank Broccolo
By: Frank J. Broccolo
LAW OFFICE OF FRANK J.
BROCCOLO

On behalf of Plaintiffs and the Proposed
Class

On behalf of Defendant Costco Wholesale
Corporation

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Filer’s Attestation: Pursuant to Local Rule 5-4.3.4(a)(2)(i), Jack Fitzgerald, hereby

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attests that concurrence in the filing of this document and its contents was obtained from all

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signatories listed.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: August 1, 2016

_____________________________________
DOUGLAS F. McCORMICK
UNITED STATES MAGISTRATE JUDGE

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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],

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declare under penalty of perjury that I have read in its entirety and understand the Stipulated

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Protective Order that was issued by the United States District Court for the Central District

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of California on _________ [date] in the case of Boswell et al. v. Costco Wholesale Corp.,

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No. 8:16-cv---278-DOC-DFM (C.D. Cal.). I agree to comply with and to be bound by all

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the terms of this Stipulated Protective Order and I understand and acknowledge that failure

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to so comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item that is

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subject to this Stipulated Protective Order to any person or entity except in strict

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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.

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

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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[printed name]

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Signature:__________________________________

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[signature]
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