Broussard v. 3M Company

Filing 21

ORDER GRANTING IN PART 20 PROTECTIVE ORDER Concerning 3M Documents and Information as Modified by the Court, signed by Magistrate Judge Jennifer L. Thurston on 1/6/2017. (Hall, S)

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

1 MORDECAI D. BOONE (Bar No. 196811)
[e-mail]
2 STEPHANIE PEATMAN (Bar No. 299577)
[e-mail]
3 DENTONS US LLP
One Market Plaza
4 Spear Tower, 24th Floor
5 San Francisco, California 94105
Telephone: [phone]
6 Facsimile: [phone]
7 Attorneys for Defendant
3M COMPANY
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA, BAKERSFIELD DIVISION
10
11

SHIRLEY BROUSSARD,

12
13
14

CASE NO. 1:16-cv-00462-LJO-JLT

Plaintiff,

ORDER GRANTING IN PART
PROTECTIVE ORDER
CONCERNING 3M DOCUMENTS
AND INFORMATION AS
MODIFIED BY THE COURT

v.

3M COMPANY, AS SUCCESSOR BY
15 MERGER TO MINNESOTA MINING
& MANUFACTURING COMPANY
16 AND/OR ITS PREDECESSORS/
17 SUCCESSORS IN INTEREST,
Defendants.
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20
21
22

PROTECTIVE ORDER
In order to preserve and maintain the confidentiality of certain documents to
be produced in this case by the Parties, it is ORDERED that the following Protective
Order be ENTERED:

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25
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27

(Doc. 20)

Definitions
1.

The term “Confidential Information” shall mean any document,

including electronic documents, other tangible things or oral testimony that contains
or reveals confidential, trade secret, proprietary and competitively sensitive
information, which would harm 3M Company’s (“3M”) significant competitive and

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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

1 business advantage in the marketplace if the information is disclosed. A designating
2 Party shall act in good faith in designating information as “Confidential
3 Information,” but a non-designating Party retains the right to dispute or challenge
4 such designation as described in Paragraph 6 below.
5

2.

A “Competitor” of 3M is defined as any company which designs,

6 manufactures, sells, and/or distributes respiratory protection equipment.
7

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

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10

3.

The term “Qualified Person” shall mean:
a.

The Court and its official personnel, court reporters and

translators;
b.

The Plaintiff and Plaintiff’s counsel retained in connection with

11

the above captioned case, and their clerical, litigation support and paralegal

12

employees. Plaintiff’s counsel may review information deemed confidential

13

under this Protective Order with Plaintiff, and may discuss the contents of

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such Confidential Information with Plaintiff, provided however, Plaintiff may

15

not obtain possession of any such documents designated as Confidential

16

Information outside the presence of Plaintiff’s counsel and shall not divulge

17

such Confidential Information to any person who is not bound by the

18

provisions of the Protective Order;

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c.

Litigation support service providers, including photocopy or

20

imaging services, graphic or visual aids, and jury consultants, PROVIDED

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that any such litigation service provider agrees to be bound by the provisions

22

of the Protective Order by signing Exhibit A (“Declaration and Agreement to

23

Be Bound”);

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d.

Testifying or consulting experts engaged by a Party or by

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Counsel for the Party, to assist in this litigation, PROVIDED that any such

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testifying or consulting expert agrees to be bound by the provisions of the

27

Protective Order by signing Exhibit A;

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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

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e.

Defendant’s outside Counsel of record retained in connection

2

with the above captioned case, and their clerical, litigation support and

3

paralegal employees;

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f.

An in-house employee of Defendant in this action who is

responsible for managing this litigation and who does not have responsibility

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for any competitive decision-making regarding respiratory protection, and

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who does not give and will not give, before final adjudication and destruction

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DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

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of all Confidential Information pursuant to Paragraph 18 herein, advice to the

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management of his or her employer regarding any competitive decision-

10

making about respiratory protection, including but not limited to sales,

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marketing, pricing, product design, product development or research,

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PROVIDED that any such in-house employee agrees to be bound by the

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provisions of the Protective Order by signing Exhibit A;

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g.

Any other person who is designated a “Qualified Person” by

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order of the Court or by written agreement of the Parties PROVIDED that any

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such person agrees to be bound by the provisions of the Protective Order by

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signing Exhibit A.

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Confidential Information Designation
4.

Any document or other tangible thing that contains or reveals

20 Confidential Information shall be labeled “Confidential” in such a manner so as not
21 to obscure any writing or data appearing on such page. For a document, such
22 marking shall appear on each page of the document that contains Confidential
23 Information. Any document or other tangible thing marked “Confidential” and the
24 information it contains or reveals shall be treated in accordance with the provisions
25 of this Protective Order. Any Confidential Information not reduced to documentary
26 or physical form or which cannot be conveniently labeled shall be so designated by
27 a Party by serving a written notification on the receiving Party.
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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

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Further, certain “Confidential Information” such as social security numbers,

2 addresses or any other information that would identify any individual in violation of
3 his or her rights to privacy may be redacted from said Confidential Information.
4

5.

A Party may designate information disclosed at any deposition as

5 Confidential Information on the record during the deposition. If information is
6 designated as Confidential Information during the deposition, the following steps
7 shall be taken to identify, and mark the Confidential Information:

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

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a.

The court reporter shall visibly mark the cover page of the

deposition transcript as “Confidential: Subject to Protective Order.” The

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videographer shall visibly mark any videotapes of such deposition as

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“Confidential: Subject to Protective Order.”

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b.

If information is designated as confidential on the record at the

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deposition, all such information shall be treated as Confidential Information

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until thirty (30) days after a transcript of the deposition is received by counsel

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for each Party.

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c.

The designating Party shall serve within thirty (30) days of

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receiving the transcript a written notification identifying the specific pages

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and lines of the transcript that contain Confidential Information, or stating

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that no Confidential Information is contained herein. This written notification

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shall be served on the other Party, the court reporter, and the videographer. If

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the designating Party fails to provide such written notification within thirty

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(30) days, the information from the deposition initially will not be considered

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Confidential. However, if a designating Party fails to provide written

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notification within thirty (30) days, that ability to designate information as

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Confidential is not waived. The designating Party can later provide written

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notification concerning Confidential Information.

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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
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d.

Any person in the possession, custody, or control of such

2

deposition transcript shall attach a copy of such written notification to the

3

face of the transcript.

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Challenges to Confidential Information Designation

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6.

If a Party disputes or challenges the designation of any information as

6 Confidential Information, either after the production of documents in response to
7 discovery requests or during depositions as stated in paragraph 5 above, the Party

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

8 may seek a Court Order that removes or alters the protections afforded such
9 information under the provisions of this Order. Such information shall nevertheless
10 be treated as Confidential Information in accordance with the provisions of this
11 Protective Order until such designation is removed by order of the Court or by
12 written consent of the designating Party. The Party challenging the designation
13 must identify the challenged documents by Bates numbers. If the number of
14 challenged documents is large, the designating Party may require additional time for
15 review, and either by agreement of the parties or from the Court, seek additional
16 time.
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Use and Disclosure of Confidential Information
7.

Documents shall be produced to the other Party, regardless of whether

19 they are marked Confidential. Documents marked Confidential shall be treated as
20 such under the terms of this Protective Order, but are not otherwise shielded from
21 production. Confidential Information shall not be shown, disseminated, or disclosed
22 to any person other than a Qualified Person or to the Party who designated such
23 Confidential Information, except as otherwise provided in this Protective Order.
24

8.

Confidential Information or information therein may not be disclosed

25 (a) to anyone other than the Qualified Persons in paragraph 3 (b)-(g) who have
26 signed Exhibit A in accordance with this Protective Order, or (b) in any case other
27 than Shirley Broussard vs. 3M Company, United States District Court, Eastern
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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

1 District of California, Case No. 1:16-cv-00462-LJO-JLT without approval of the
2 Party producing the Confidential Information.
3

Notwithstanding the provisions above, should a Party wish to disclose a

4 document identified as Confidential to a person, other than a Qualified Person, who
5 may be employed by any present or potential Competitor, or a person who is
6 consulting with any present or potential Competitor, as defined above, that Party
7 shall first request, in writing, the Party producing the confidential documents for its

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

8 consent for the requesting Party to disclose the confidential documents to the
9 requesting Party’s identified employee, employees, consultant or consultants. Such
10 a request shall list the document for which disclosure is requested by Bates number.
11 If no such consent is given within fourteen (14) days of the request, the requesting
12 Party, with notice to the producing Party, may approach the Court, in camera, with
13 copies of the documents to be disclosed and the curriculum vitae of the person to
14 whom the documents are to be disclosed and obtain a ruling on whether the
15 documents may be disclosed to that person.
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9.

Confidential Information shall be used solely for the purpose of this

17 action and shall not be used for any competitive purpose.
18

10.

No copies of materials designated Confidential shall be made except by

19 or on behalf of counsel of record for the Parties.
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11.

Notwithstanding the other provisions of this Protective Order, the

21 Parties may use Confidential Information at any deposition in this action pursuant to
22 the following:
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a.

The Confidential Information may only be disclosed to the

deponent in the presence of Qualified Persons.
b.

Confidential Information may be disclosed by outside Counsel of

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the Parties, including Competitors, to corporate representatives or other

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witnesses of the Parties in order to prepare the corporate representative or

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witness for deposition or trial, provided such corporate representative or
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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

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witness agrees to be bound by the provisions of the Protective Order by

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signing Exhibit A.

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c.

The Party using Confidential Information at the deposition shall

notify the court reporter of this Protective Order.

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d.

After time for correction of the deposition has expired, the court

reporter shall not retain a copy of any Confidential Information, or material

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containing Confidential Information, but shall return such information to the

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DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

6

designating Party within seven (7) days. The Party using the Confidential

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Information has the responsibility of ensuring the reporter acts in accordance

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with this provision.

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12.

(a) A document that contains or reveals Confidential Information may

12 be shown at a deposition or otherwise to any person, including a current or former,
13 employee of a Competitor, indicated in such document to be the originator, author,
14 or recipient of the document or of the Confidential Information contained therein; or
15 who is identified or discussed in the document; or any person who is an officer,
16 director, or employee of the Party who designated such Confidential Information.
17 Any witness to whom Confidential Information is disclosed under this subparagraph
18 12(a) shall be bound by the terms of this Protective Order and shall sign a copy of
19 Exhibit A.
20

(b) Should a document that contains or reveals Confidential

21 Information be shown to a person at a deposition that is not the originator, author,
22 recipient, officer, director, or employee of the Party who designated such
23 Confidential Information, then such person shall also qualify as a “Qualified
24 Person” and shall sign Exhibit A.
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13.

Nothing in this Protective Order shall prevent disclosure of

26 Confidential Information if the designating Party consents in writing to such
27 disclosure.
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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

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Inadvertent Production
14.

The inadvertent failure by a Party to designate specific documents or

3 material as containing Confidential Information shall not be deemed a waiver in
4 whole or in part of a claim of confidentiality as to such documents or materials.
5 Upon notice to the receiving Party of such failure to designate, the receiving Party
6 shall cooperate to restore the confidentiality of the inadvertently disclosed
7 information.

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

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Filing of Confidential Information
15.

In the event that a Party wishes to use any Confidential Information in

10 any pleading, motion, brief, memorandum, exhibit, affidavit, declaration, transcript,
11 response to a discovery request, or other paper filed with the Court, said Party shall
12 submit said information to the Court in a sealed envelope or other appropriate
13 container at the time the Party files its pleading, motion, brief, memorandum,
14 exhibit, affidavit, declaration, transcript, response to a discovery request, or other
15 paper filed with the Court, and shall contemporaneously file a Motion with the
16 Court requesting that such documents submitted in the sealed envelope or other
17 appropriate container be filed under seal.
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The sealed envelope or appropriate container shall:

19

a.

Show the caption of this action;

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b.

Identify its contents;

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c.

Identify the name of the filing Party; and

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d.

Include the following legend: “CONFIDENTIAL INFORMATION

23 FOR THE COURT’S REVIEW ONLY.” “This envelope [or container] contains
24 proprietary information. This envelope [or container] was filed by [name of Party]
25 and may not be opened, nor may its contents be displayed or revealed, except for
26 use by the Court, or by court order or written stipulation of the parties.”
27

This Protective Order does not prevent the use of Confidential Information at

28 trial, nor does it prevent the filing of such Confidential Information under seal as
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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

1 described above if such Confidential Information is used in support of pre-trial
2 motions and matters. The use of Confidential Information in such situations will be
3 addressed on a case-by-case basis, if and when the need arises in the course of this
4 matter and in the manner described above. comply with Local Rule 141.
5

16.

This Protective Order shall not apply to the disclosure of Confidential

6 Information at the time of trial through the receipt of Confidential Information into
7 evidence as an Exhibit or through the testimony of witnesses. This Protective Order

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

8 does not address whether Confidential Information introduced into evidence shall be
9 sealed or open to public inspection. These issues may be taken up as a separate
10 matter upon a motion by a Party. If a Party intends to disclose any Confidential
11 Information during the trial of this case, that Party shall give written notice to the
12 Party producing such Confidential Information of such intent and shall identify such
13 Confidential Information in its exhibit list to be filed pursuant to the Court’s
14 scheduling order so that such producing Party might take any steps it deems
15 necessary to protect the confidential nature of such information that may be
16 disclosed at trial.
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Applicability of Protective Order Post-Litigation
17.

Upon final adjudication (including any appellate proceeding) of the

19 claims at issue in this action, or upon such earlier order as the Court may enter
20 pursuant to a duly noticed motion and hearing, the Clerk of the Court shall return to
21 each Party all materials designated as Confidential that have been filed with the
22 Court by that Party.
23

18.

Within ninety (90) days of the final adjudication (including any

24 appellate proceedings) or other final disposition of the claims at issue herein,
25 Counsel for the non-designating Party to this stipulation, unless otherwise agreed to
26 in writing by an attorney of record for the designating Party, shall (1) assemble and
27 return to counsel for the designating Party all designated materials in its possession,
28 including all copies thereof, (2) assemble and return to counsel for the designating
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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

1 Party all designated materials produced in this case that was made available to other
2 Qualified Persons, (3) permanently delete and provide to counsel for the designating
3 Party confirmation of deletion of designated materials and all designated materials
4 incorporated into other documents, and all copies (including electronic copies) made
5 thereof, including all documents or copies of documents provided by the party to
6 any other person from all systems, applications, hard drives, servers, web-based or
7 other storage repositories of any type, and (4) provide assurance to counsel for the

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

8 designating Party that no steps will be taken at any time in the future to restore
9 deleted designated materials and all documents containing information from
10 designated materials, and that any inadvertent violation of this assurance and steps
11 taken to remedy it will be promptly reported to the other party.
12

19.

The provisions of this Protective Order shall survive and remain in full

13 force and effect after the termination or other disposition of this litigation, including
14 any appeals, or until otherwise expressly ordered by the Court.
15
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Breach of this Agreement
20.

Breach of this agreement may be punished by the contempt powers of

17 this Court.
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19

Miscellaneous
21.

Counsel of record shall be responsible for maintaining a file of the

20 Exhibit A executed by the Qualified Persons as designated in paragraph 3 (c)-(g).
21 The file of the signed declarations shall be available for inspection by the Court.
22

22.

Nothing in this Protective Order shall prejudice the right of a Party to

23 oppose production of any information for lack of relevance, privilege, or any ground
24 other than confidentiality or privacy.
25

23.

Nothing in this Protective Order shall prejudice the right of a Party to

26 seek at any time a further order modifying this Protective Order.
27

24.

In the event that a new Party is added, substituted, or brought into this

28 litigation, this Protective Order will be binding on and inure to the benefit of the
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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

1 new Party, subject to the right of the new Party to seek relief from or modification
2 of this Protective Order.
3

25.

Nothing contained in this Protective Order shall affect the right of the

4 designating Party to disclose or use for any purpose the documents or information
5 produced and designated by it as confidential.
6

26.

This protective Order shall be binding upon all Qualified Persons.

7

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

8
9

ORDER
Due to the changes made by the Court at paragraphs 15 and 17, the stipulated

10 protective order is GRANTED in PART.
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IT IS SO ORDERED.
Dated:

January 6, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

1 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

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) CASE NO. 1:16-cv-00462-LJO-JLT
)
)
)
)
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SHIRLEY BROUSSARD,
Plaintiff,
v.
3M COMPANY, AS SUCCESSOR BY

6 MERGER TO MINNESOTA MINING &
MANUFACTURING COMPANY AND/OR

7 ITS PREDECESSORS/SUCCESSORS IN

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

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INTEREST,
Defendants.

EXHIBIT A
DECLARATION AND AGREEMENT TO BE BOUND

I, _______________ declare as follows:
My address is _______________________________________.

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My present employer is _________________________________, and the address of my
present employer is __________________________________.

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I hereby acknowledge that I may receive information designated as confidential under the

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Protective Order of the Court in the above lawsuit, and I certify my understanding that

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such Confidential Information is provided to me pursuant to the terms and restrictions of

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the Protective Order in the above-captioned case, which is dated ______________.

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I further state that I have been given a copy of and have read the Protective Order, that I

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am familiar with its terms, that I agree to comply with and to be bound by each of the

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terms in the Protective Order, and that I agree to hold in confidence any Confidential

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Information disclosed to me pursuant to the terms of the Protective Order and understand

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that unauthorized disclosure of any Confidential Information, or its substance, may

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constitute contempt of this Court and may subject me to sanctions or other remedies that

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may be imposed by the Court.

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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT

1

To assure my compliance with the Protective Order, I hereby submit myself to the

2

jurisdiction of this Court for the limited purpose of any proceedings relating to the

3

performance under, compliance with or violation of this Protective Order.

4

I understand that I am to retain all of the materials that I receive which have been

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6
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designated as Confidential in a container, cabinet, drawer, room, or other safe place in a
manner consistent with the Protective Order; that I agree to protect such materials from

DENTONS US LLP
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
[phone]

8

inadvertent disclosure; that all such material are to remain in my custody until I have

9

completed my assigned duties, whereupon, within thirty (30) days, they are to be returned

10

to the Party who provided them to me; and that any materials, memoranda, work notes, or

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other documents derived from the documents designated as Confidential are to be

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delivered to the Party who provided the designated materials. Such delivery shall not

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relieve me from any of the continuing obligations imposed by the Protective Order. I

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further agree to notify any stenographic or clerical personnel assisting me of the terms of

16

the Protective Order.

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I declare under the penalty of perjury under the law of the State of California and the

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United States of America that the foregoing is true and correct.

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Executed On: ____________________________________
By:

___________________________________

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PROTECTIVE ORDER CONCERNING 3M DOCUMENTS
AND INFORMATION - CASE NO. 1:16-cv-00462-LJO-JLT