Pinon v. Tristar Products, Inc.

Filing 38

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Stanley A. Boone on 4/14/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION 9 10 EDWINA PINON, individually and on behalf of all persons similarly situated, 11 Plaintiff, 12 vs. 13 TRISTAR PRODUCTS, INC., DOES 1-10, 14 inclusive, 15 CASE NO. 1:16-CV-00331-DAD-SAB STIPULATED ORDER PROTECTIVE ORDER; Defendant. 16 17 1. PURPOSE AND LIMITATIONS 18 Disclosure and discovery activity in this action are likely to involve production of 19 confidential, proprietary, or private information, including, but not limited to, sensitive 20 commercial, financial and/or business records, for which special protection from public disclosure 21 and from use for any purpose other than prosecuting this litigation may be warranted. 22 Accordingly, the parties, defendant, TRISTAR PRODUCTS, and plaintiffs, EDWINA PINON, 23 individually and on behalf of all persons similarly situated, hereby stipulate to and petition the 24 court to enter the following Stipulated Protective Order. 25 The parties acknowledge this Stipulation and Order does not confer blanket protections on 26 all disclosures or responses to discovery and that the protection it affords from public disclosure 27 and use extends only to the limited information or items that are entitled to confidential treatment 28 1 1 under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, 2 below, this Stipulation and Order does not entitle them to file confidential information under seal; 3 Civil Local Rule 141 sets forth the procedures that must be followed and the standards that will be 4 applied when a party seeks permission from the Court to file material under seal. 5 2. DEFINITIONS 6 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 7 information or items under this Order. 8 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 9 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 10 of Civil Procedure 26(c). 11 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 12 well as their support staff). 13 2.4 Designating Party: a Party or Non-Party that designates information or items that it 14 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 15 2.5 Disclosure or Discovery Material: all items or information, regardless of the 16 medium or manner in which it is generated, stored, or maintained (including, among other things, 17 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 18 responses to discovery in this matter. 19 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 20 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 21 consultant in this action. 22 2.7 House Counsel: attorneys who are employees of a party to this action. House 23 Counsel does not include Outside Counsel of Record or any other outside counsel. 24 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 25 entity not named as a Party to this action. 26 27 28 2 1 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 2 action but are retained to represent or advise a party to this action and have appeared in this action 3 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 4 2.10 Party: any party to this action, including all of its officers, directors, employees, 5 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 6 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 7 Material in this action. 8 2.12 Professional Vendors: persons or entities that provide litigation support services 9 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 10 organizing, storing, or retrieving data in any form or medium) and their employees and 11 subcontractors. 12 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 13 “CONFIDENTIAL.” 14 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 15 Producing Party. 16 3. SCOPE 17 The protections conferred by this Stipulation and Order cover not only Protected Material 18 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 19 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 20 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 21 However, the protections conferred by this Stipulation and Order do not cover the following 22 information: (a) any information that is in the public domain at the time of disclosure to a 23 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 24 result of publication not involving a violation of this Order, including becoming part of the public 25 record through trial or otherwise; and (b) any information known to the Receiving Party prior to 26 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained 27 28 3 1 the information lawfully and under no obligation of confidentiality to the Designating Party. Any 2 use of Protected Material at trial shall be governed by a separate agreement or order. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations imposed by this 5 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 6 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 7 and defenses in this action, with or without prejudice; and (2) final judgment herein after the 8 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 9 including the time limits for filing any motions or applications for extension of time pursuant to 10 applicable law. 11 5. DESIGNATING PROTECTED MATERIAL 12 5.1 Manner and Timing of Designations. Except as otherwise provided in this Order, 13 or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 14 under this Order must be clearly so designated before the material is disclosed or produced. 15 Designation in conformity with this Order requires: 16 (a) for information in documentary form (e.g., paper or electronic documents, but 17 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 18 affix the legend “CONFIDENTIAL” to each page that contains protected material. 19 A Party or Non-Party that makes original documents or materials available for inspection 20 need not designate them for protection until after the inspecting Party has indicated which material 21 it would like copied and produced. During the inspection and before the designation, all of the 22 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 23 Party has identified the documents it wants copied and produced, the Producing Party must 24 determine which documents, or portions thereof, qualify for protection under this Order. Then, 25 before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL” 26 legend to each page that contains Protected Material. 27 28 4 1 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 2 Designating Party identify on the record, before the close of the deposition, hearing, or other 3 proceeding, all protected testimony. 4 (c) for information produced in some form other than documentary and for any other 5 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 6 or containers in which the information or item is stored the legend “CONFIDENTIAL.” 7 5.2 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 8 designate qualified information or items does not, standing alone, waive the Designating Party’s 9 right to secure protection under this Order for such material. Upon timely correction of a 10 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 11 in accordance with the provisions of this Order. 12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 13 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 14 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 15 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 16 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 17 challenge a confidentiality designation by electing not to mount a challenge promptly after the 18 original designation is disclosed. 19 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 20 process by providing written notice of each designation it is challenging and describing the basis 21 for each challenge. A Challenging Party may proceed to the next stage of the challenge process 22 only if it has engaged in this meet and confer process first or establishes that the Designating Party 23 is unwilling to participate in the meet and confer process in a timely manner. 24 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 25 intervention, the Challenging Party may file a motion challenging a confidentiality designation if 26 there is good cause for doing so, including a challenge to the designation of a deposition transcript 27 or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a 28 5 1 competent declaration affirming that the movant has complied with the meet and confer 2 requirements imposed by the preceding paragraph. 3 7. ACCESS TO AND USE OF PROTECTED MATERIAL 4 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 5 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 6 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 7 the categories of persons and under the conditions described in this Order. When the litigation has 8 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 9 DISPOSITION). 10 Protected Material must be stored and maintained by a Receiving Party at a location and in 11 a secure manner that ensures that access is limited to the persons authorized under this Order. 12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 13 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 14 information or item designated “CONFIDENTIAL” only to: 15 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 16 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 17 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 18 Bound” that is attached hereto as Exhibit A; 19 (b) the officers, directors, and employees (including House Counsel) of the Receiving 20 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 21 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 22 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 23 reasonably necessary for this litigation and who have signed the “Acknowledgment and 24 Agreement to Be Bound” (Exhibit A); 25 (d) the court and its personnel; 26 27 28 6 1 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, 2 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 3 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 5 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 6 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 7 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 8 bound by the court reporter and may not be disclosed to anyone except as permitted under this 9 Stipulated Protective Order. 10 (g) the author or recipient of a document containing the information or a custodian or 11 other person who otherwise possessed or knew the information. 12 8. 13 14 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that compels 15 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 16 must: 17 (a) promptly notify in writing the Designating Party. Such notification shall include a 18 copy of the subpoena or court order; 19 (b) promptly notify in writing the party who caused the subpoena or order to issue in 20 the other litigation that some or all of the material covered by the subpoena or order is subject to 21 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 22 and 23 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 24 Designating Party whose Protected Material may be affected. 25 The Party served with the subpoena or court order shall not produce any information 26 designated in this action as “CONFIDENTIAL” before a determination by the court from which 27 the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. 28 7 1 9. 2 3 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non-Party in 4 this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 5 connection with this litigation is protected by the remedies and relief provided by this Order. 6 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 7 additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 9 Party’s confidential information in its possession, and the Party is subject to an agreement with the 10 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 11 (1) Promptly notify in writing the Requesting Party and the Non-Party that some or all 12 of the information requested is subject to a confidentiality agreement with a Non-Party; 13 (2) Promptly provide the Non-Party with a copy of the Stipulated Protective Order in 14 this litigation, the relevant discovery request(s), and a reasonably specific description of the 15 information requested; and 16 (3) Make the information requested available for inspection by the Non-Party. 17 (c) If the Non-Party fails to object or seek a protective order from this court within 14 18 days of receiving the notice and accompanying information, the Receiving Party may produce the 19 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 20 seeks a protective order, the Receiving Party shall not produce any information in its possession or 21 control that is subject to the confidentiality agreement with the Non-Party before a determination 22 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and 23 expense of seeking protection in this court of its Protected Material. 24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 26 Material to any person or in any circumstance not authorized under this Stipulated Protective 27 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 28 8 1 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 2 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 3 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 4 Agreement to Be Bound” that is attached hereto as Exhibit A. 5 11. 6 7 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain inadvertently 8 produced material is subject to a claim of privilege or other protection, the obligations of the 9 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 10 provision is not intended to modify whatever procedure may be established in an e-discovery order 11 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 12 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 13 communication or information covered by the attorney-client privilege or work product protection, 14 the parties may incorporate their agreement in the stipulated protective order submitted to the 15 court. 16 12. MISCELLANEOUS 17 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 18 seek its modification by the court in the future. 19 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 20 Order no Party waives any right it otherwise would have to object to disclosing or producing any 21 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 22 Party waives any right to object on any ground to use in evidence of any of the material covered 23 by this Protective Order. 24 12.3 Filing Protected Material. Without written permission from the Designating Party 25 or a court order secured after appropriate notice to all interested persons, a Party may not file in 26 the public record in this action any Protected Material. A Party that seeks to file under seal any 27 Protected Material must comply with Civil Local Rule 141. 28 9 1 13. FINAL DISPOSITION 2 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 3 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 4 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 Material. Whether 6 the Protected Material is returned or destroyed, the Receiving Party must submit a written 7 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 8 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected 9 Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained 10 any copies, abstracts, compilations, summaries or any other format reproducing or capturing any 11 of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival 12 copy of all 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. Any such 15 archival copies that contain or constitute Protected Material remain subject to this Protective Order 16 as set forth in Section 4 (DURATION). IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 17 LEWIS BRISBOIS BISGAARD & SMITH 18 LLP DATED: April 14, 2017 19 20 21 22 By: /s/ Pamela M. Ferguson Shawn A. Toliver Pamela M. Ferguson Jon C. James Attorneys for Defendant TRISTAR PRODUCTS, INC. 23 LAW OFFICES OF TODD M. FRIEDMAN, P.C 24 DATED: April 14, 2017 25 26 27 LLP /s/ Meghan George (as authorized on April 12, By: 2017) Todd M. Friedman Meghan George Attorneys for Plaintiff EDWINA PINON 28 10 1 I hereby attest that I have on file all holographic signatures corresponding to any 2 signatures indicated by a conformed signature (/s/) within this e-filed document. LEWIS BRISBOIS BISGAARD & SMITH 3 DATED: April 14, 2017 4 LLP By: /s/ Pamela M. Ferguson Shawn A. Toliver Pamela M. Ferguson Jon C. James Attorneys for Defendant TRISTAR PRODUCTS, INC. 5 6 7 8 ORDER 9 10 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 11 1. The protective order is entered; 12 2. The parties are advised that pursuant to the Local Rules of the United States 13 District Court, Eastern District of California, any documents which are to be 14 filed under seal will require a written request which complies with Local Rule 15 141; and 16 3. The party making a request to file documents under seal shall be required to 17 show good cause for documents attached to a nondispositive motion or 18 compelling reasons for documents attached to a dispositive motion. Pintos v. 19 Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). 20 21 IT IS SO ORDERED. 22 Dated: April 14, 2017 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 11 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of _________________ 5 [print or type full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States District Court for 7 the Eastern District of California on _________ 2017, in the case of Edwina Pinon v. Tristar 8 Products, Inc., et. al. Case No.: 1:16-CV-00331-DAD-SAB. I agree to comply with and to be 9 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 10 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I 11 solemnly promise that I will not disclose in any manner any information or item that is subject to 12 this Stipulated Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 16 Order, even if such enforcement proceedings occur after termination of this action. 17 I hereby appoint __________________________ [print or type full name] of 18 _______________________________________ [print or type full address and telephone number] 19 as my California agent for service of process in connection with this action or any proceedings 20 related to enforcement of this Stipulated Protective Order. Date: ____________, 2017 21 City and State where sworn and signed: 22 Printed Name: 23 Signature: 24 25 26 27 28

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