Wilson v. Conair Corporation

Filing 28

STIPULATED ORDER Governing the Designation and Handling of Confidential Materials (Doc. 27 ), Signed by Magistrate Judge Barbara A. McAuliffe on 1/15/2015. (Arellano, S.)

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BLOOD HURST & O’REARDON, LLP
TIMOTHY G. BLOOD (149343)
LESLIE E. HURST (178432)
THOMAS J. O’REARDON II (247952)
701 B Street, Suite 1700
San Diego, CA 92101
Tel: [phone]
619/338-1101 (fax)
[e-mail]
[e-mail]
[e-mail]

ROSEN SABA, LLP
RYAN D. SABA (192370)
MOMO E. TAKAHASHI (238965)
9350 Wilshire Boulevard, Suite 250
Beverly Hills, CA 90212
Tel: [phone]
310/285-1728 (fax)
[e-mail]
Attorneys for Defendant

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ODENBREIT LAW, APC
KATHERINE J. ODENBREIT (184619)
16835 Algonquin Street, Suite 221
Huntington Beach, CA 92649
Tel: [phone]
[e-mail]
Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DELIA WILSON, on Behalf of Herself and
All Others Similarly Situated,

Case No: 1:14-cv-00894-WBS-BAM
CLASS ACTION

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Plaintiff,
STIPULATED ORDER GOVERNING THE
DESIGNATION AND HANDLING OF
CONFIDENTIAL MATERIALS

v.
CONAIR CORPORATION,
Defendant.

District Judge:
Sacramento Ctrm:
Magistrate Judge:
Fresno Ctrm:

William B. Shubb
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Barbara A. McAuliffe
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Complaint Filed: June 11, 2014
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00080089

Case No. 1:14-cv-00894-WBS-BAM
STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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TO THIS HONORABLE COURT:

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Plaintiff Delia Wilson and Defendant Conair Corporation (the “Parties”), jointly move

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the Court to enter the accompanying Stipulated Protective Order governing confidential

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information and documents (the “Order”).

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1.

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This Order specifies the conditions under which legally confidential documents and

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information in possession of the Parties must be exchanged, used, and protected in this

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litigation, and authorizes the Parties to disclose that information in response to discovery

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requests. This Order is justified by Rule 26(c) of the Federal Rules of Civil Procedure and

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relevant case law and is necessary in order for the Parties to obtain relevant and essential

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discovery. The Parties acknowledge that this Order does not confer blanket protection on all

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

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

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treatment under the applicable legal principles.

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PURPOSES AND LIMITATIONS

Entry of this Order authorizing the Parties to disclose such records is necessary for the

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conduct of discovery in this action.

The Parties, therefore, respectfully request that the

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attached Stipulated Protective Order be adopted by order of the Court.

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2.

DEFINITIONS

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2.1

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

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information or items as identified in this Stipulation.
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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2.3

Counsel (without qualifier): Outside Counsel of Record and In-House Counsel

(as well as their support staff).
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Designating Party: A Party or Non-Party that designates information or items

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

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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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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, electronically stored information, and tangible or intangible

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things), that are produced or generated in disclosures or responses to discovery in this matter.

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2.6

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

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In-House Counsel: Attorneys who are employees of a Party to this action. In-

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

legal entity not named as a Party to this action.

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2.8

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 of

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that Party.

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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 support

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staff).

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2.10

Producing Party: A Party or Non-Party that produces Disclosure or Discovery

Material in this action.

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2.11

Professional Vendors: Persons or entities that provide litigation support services

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

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

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subcontractors.

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2.12

Protected Material: Any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”

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2.13

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

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Producing Party.

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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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3.

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The protections conferred by this Stipulation cover not only Protected Material (as

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defined above), but also (1) any information copied or extracted from Protected Material; (2)

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

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conversations, or presentations by Parties or their Counsel that might reveal Protected

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Material. However, the protections conferred by this Stipulation do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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

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as a result of publication not involving a violation of this Order, including becoming part of

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the public record through trial or otherwise; and (b) any information known to the Receiving

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Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a

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source who obtained the information lawfully and under no obligation of confidentiality to the

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Designating Party. Any use of Protected Material at trial shall be governed by a separate

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agreement or order.

SCOPE

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4.

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

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a

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court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal

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

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herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or

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

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extension of time pursuant to applicable law.

DURATION

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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

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standards. To the extent it is practical to do so, the Designating Party must designate for

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

protection only those parts of material, documents, items, or oral or written communications
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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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that qualify – so that other portions of the material, documents, items, or communications for

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which protection is not warranted are not swept unjustifiably within the ambit of this 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, Designating Party must promptly notify

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all 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 Stipulation

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with the Court’s Order on the Parties’ Stipulation requires:

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

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

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Producing Party affix the legend “CONFIDENTIAL” (or a substantially similar legend) to

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

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

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portion(s) (e.g., by making appropriate markings in the margins).

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designation shall not in any manner cover up, overlap upon, obscure or otherwise conceal any

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text, picture, drawing, graph or other communication or depiction in the document. To the

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extent documents are produced in native format, it shall be sufficient for the Producing Party

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to either include the terms “CONFIDENTIAL” in the file name for the document and/or to

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include an associated placeholder document bearing the terms “CONFIDENTIAL” (or a

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substantially similar legend).

Any such stamp or

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

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which material it would like copied and produced. After the inspecting Party has identified the

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

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documents, or portions thereof, qualify for protection under this Stipulation and Proposed

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

Order. Then, before producing the specified documents, the Producing Party must affix the
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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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appropriate legend (“CONFIDENTIAL”) to each page that contains Protected Material. If

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

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

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in the margins) and must specify, for each portion, the level of protection being asserted. To

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the extent documents are produced in native format, it shall be sufficient for the Producing

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Party to either include the term “CONFIDENTIAL” in the file name for the document and/or

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to include an associated placeholder document bearing the term “CONFIDENTIAL” (or a

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substantially similar legend).

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(b) for testimony given in deposition or in other pretrial or trial proceedings,

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that the Designating Party identify on the record, before the close of the deposition, hearing, or

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other proceeding, all protected testimony and specify the level of protection being asserted.

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Alternatively, the Designating Party may identify the specific portions of the testimony as to

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which protection is sought within 30 (thirty) days following receipt of the reporter’s transcript

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of the deposition, hearing, or other proceeding (or longer if agreed to by the Parties). Only

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those portions of the testimony that are appropriately designated for protection within the 30

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(thirty) days (or longer if agreed to by the Parties) shall be covered by the provisions of this

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Stipulation and Proposed Order. A Designating Party may specify, at the deposition or within

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30 (thirty) days of receipt of the reporter’s transcript (or longer if agreed to by the Parties), that

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the entire transcript shall be treated as “CONFIDENTIAL” to the extent such a designation is

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consistent with the other terms of this Stipulation. The use of a document as an exhibit at a

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deposition shall not in any way affect its designation as “CONFIDENTIAL.”

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Transcripts containing Protected Material shall have an obvious legend on the title

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page that the transcript contains Protected Material, and the title page shall be followed by a

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list of all pages (including line numbers as appropriate) that have been designated as Protected

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Material. The Designating Party shall inform the court reporter of these requirements. If the

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designation of Protected Material occurs after the deposition transcript has been prepared and

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results in an additional cost, the Designating Party shall pay the additional transcript costs.

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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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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 of the

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

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“CONFIDENTIAL” (or a substantially similar legend). If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent practicable, shall

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identify the protected portion(s).

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5.3

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 a designation, the Receiving

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Party must make reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

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

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confidentiality at any time.
6.2

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

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process by providing written notice of each designation it is challenging and describing the

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basis for each challenge. Upon receipt of the written notice, the Producing Party shall have 10

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(ten) days to provide a written response to the Challenging Party explaining the basis and/or

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supporting authority for the designation, or an agreement to withdraw the confidential

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designation.

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(fourteen) days of the date of the written response served by the Producing Party in an attempt

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to resolve the dispute without court intervention.

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6.3

If the dispute is not resolved, the Parties shall meet and confer within 14

Judicial Intervention. If the Parties cannot resolve a challenge without court

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there is good cause for doing so, including a challenge to the designation of a deposition

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transcript or any portions thereof, pursuant to Local Rule 251(a) and Magistrate Judge

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McAuliffe’s standing orders (or the standing orders of whichever Magistrate is assigned to this

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intervention, the Challenging Party shall file and serve a motion to challenge confidentiality, if

matter) with at least 21 (twenty-one) days’ notice. Each such motion must be accompanied by
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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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a competent declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph. Alternative to a written motion, the Parties

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may agree to have the dispute resolved by Magistrate Judge McAuliffe’s “Informal Telephonic

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Conferences re Discovery Disputes” process. In addition, the Designating Party may file a

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motion to retain a confidentiality designation at any time if there is good cause for doing so,

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including retention of the designation of a deposition transcript or any portions thereof. Any

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motion brought pursuant to this provision must be accompanied by a competent declaration

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affirming that the movant has complied with the meet and confer requirements imposed by the

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preceding paragraph and provide at least 21 (twenty-one) days’ notice.

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

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Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other Parties) may expose the Challenging Party to

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sanctions. All Parties shall continue to afford the material in question under the Producing

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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 case only for

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prosecuting, defending, or attempting to settle this litigation (including any related appeals).

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

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conditions described in this Order. When the litigation has been terminated, a Receiving Party

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must comply with the provisions of section 12 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 this

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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 may

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

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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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(a) the Parties and the Receiving Party’s Outside Counsel of Record in this

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action, as well as employees, support personnel, independent contractors and investigators

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operating under the supervision of the Receiving Party’s Outside Counsel of Record to whom

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it is reasonably necessary to disclose the information for this litigation;

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(b) the officers, directors, and employees (including In-House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation;

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(c) experts and consultants, including associated personnel of the Receiving

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Party to whom disclosure is reasonably necessary for this litigation and who have signed the

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

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(d) the court and its personnel;

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(e) professional jury or trial consultants who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(f) professional vendors to whom disclosure is reasonably necessary for this
litigation;

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

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected

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

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except as permitted under this Stipulated Protective Order; and

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(h) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or reasonably knew of the information.
8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN 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

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this action as

“CONFIDENTIAL” that Party must:

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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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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 in

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

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

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Order; and

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(c) 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 or tribunal from which the subpoena

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

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

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confidential 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 court

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or tribunal.

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The

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

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

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

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

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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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Party’s confidential information in its possession, and the Party is subject to an agreement with

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the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

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(b) In the event that a Party is required, by a valid discovery request, to produce a Non-

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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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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. if not confidential, promptly provide the Requesting Party with a copy of the

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agreement between the Producing Party and the Non-Party that purportedly obligates the

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Producing Party to not produce the Non-Party’s confidential information;

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3. promptly provide the Non-Party with a copy of the Stipulated Protective

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

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of the information requested; and

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4. 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 14

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(fourteen) days of receiving the notice and accompanying information, the Receiving Party

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

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the 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 the

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

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Party shall bear the burden and expense of seeking protection in this court of its Protected

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Material.

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10.

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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 Designating

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

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

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were made of all the terms of this Order, and (d) request such person or persons to execute the

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

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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11.

MISCELLANEOUS

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11.1

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

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to seek its modification by the court in the future.
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STIPULATION AND ORDER GOVERNING CONFIDENTIAL INFORMATION

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11.2

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 producing

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any information or item on any ground not addressed in this Stipulated Protective Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.

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11.3

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 not

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file in the public record in this action any Protected Material. A Party that seeks to file under

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seal any Protected Material must comply with Civil Local Rule 141. Protected Material may

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

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Protected Material at issue. If a Receiving Party's request to file Protected Material under seal

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pursuant to Civil Local Rule 141 is denied by the court, then the Receiving Party may file the

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Protected Material in the public record pursuant to Civil Local Rule 141 unless otherwise

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instructed by the court.

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After the final disposition of this action, as defined in paragraph 4, upon the request of

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the Producing Party each Receiving Party must within 60 (sixty) days return all Protected

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Material to the Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and any other

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format reproducing or capturing any of the Protected Material. Whether the Protected Material

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is returned or destroyed, the Receiving Party must submit a written certification to the

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Producing Party (and, if not the same person or entity, to the Designating Party) that affirms

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that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any

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other format reproducing or capturing any of the Protected Material. Notwithstanding this

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provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial

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exhibits, expert reports, attorney work product, and consultant and expert work product, and

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12.

all other documents filed with the court, even if such materials contain Protected Material.

FINAL DISPOSITION

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Any 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).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: January 12, 2015

BLOOD HURST & O’REARDON, LLP

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By:
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s/ Leslie E. Hurst
LESLIE E. HURST

701 B Street, Suite 1700
San Diego, CA 92101
Tel: [phone]
619/338-1101 (fax)
[e-mail]
[e-mail]
[e-mail]

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ODENBREIT LAW, APC
KATHERINE J. ODENBREIT (184619)
16835 Algonquin Street, Suite 221
Huntington Beach, CA 92649
Tel: [phone]
[e-mail]

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Attorneys for Plaintiff
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Dated: January 12, 2015
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ROSEN ✧SABA, LLP
By:

s/ Ryan D. Saba
RYAN D. SABA

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9350 Wilshire Boulevard, Suite 250
Beverly Hills, CA 90212
Tel: [phone]
310/285-1728 (fax)
[e-mail]

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Attorneys for Defendant
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

_____________________________

[print

or

type

full

name],

of

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_________________ [print or type full address], have read and understand the Stipulated

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

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California on

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Case No. 1:14-cv-00894-WBS-BAM. I agree to comply with and to be bound by all the terms

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of this Stipulated Protective Order. In compliance with this Order, I will not disclose in any

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

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[insert date] in the case of Wilson v. Conair Corporation,

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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Eastern 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 action.

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I declare under penalty of perjury under the laws of the United States of America that

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the foregoing is true and correct. Signed this ____ day of ________________, 20___, at

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________________ [insert city and state where sworn and signed].

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Signature: __

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ECF CERTIFICATION
The filing attorney attests that she has obtained concurrence regarding the filing of this
document from the signatories to this document.

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Dated: January 12, 2015

BLOOD HURST & O’REARDON, LLP

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By:

s/ Leslie E. Hurst
LESLIE E. HURST

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CERTIFICATE OF SERVICE

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I hereby certify that on January 12, 2015, I electronically filed the foregoing with the

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Clerk of the Court using the CM/ECF system which will send notification of such filing to the

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e-mail addresses denoted on the Electronic Mail Notice List, and I hereby certify that I have

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mailed the foregoing document or paper via the United States Postal Service to the non-

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CM/ECF participants indicated on the Electronic Mail Notice List.

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I certify under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct. Executed on January 12, 2015.

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s/ Leslie E. Hurst
LESLIE E. HURST
BLOOD HURST & O’REARDON, LLP
701 B Street, Suite 1700
San Diego, CA 92101
Tel: [phone]
619/338-1101 (fax)
[e-mail]

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ORDER

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Having reviewed the above Stipulated Order Governing the Designation and Handling

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of Confidential Materials, IT IS HEREBY ORDERED that the Court finds that good cause

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exists for the entry of this Order. Accordingly, the Court ADOPTS the stipulation in its

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entirety. (Doc. 27).

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IT IS SO ORDERED.
Dated:

January 15, 2015

/s/ Barbara

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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