Perkins v. Nestle Dreyer's Ice Cream Company

Filing 16

ORDER on STIPULATED PROTECTIVE ORDER. Order signed by Magistrate Judge Sheila K. Oberto on 5/9/2017. (Timken, A)

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1 2 3 4 5 SEBASTIAN L. MILLER (SBN 265793) SEBASTIAN MILLER LAW, P.C. 900 Lafayette Street, Suite 201 Santa Clara, CA 95050 Telephone: (408) 348-1728 Facsimile: (408) 716-3149 Attorneys for Plaintiff Andrew Perkins 6 7 8 9 10 EMMA LUEVANO (SBN 198421) JUSTINE LAZARUS (SBN 247471) MITCHELL SILBERBERG & KNUPP LLP 11377 West Olympic Boulevard Los Angeles, CA 90064-1683 Telephone: (310) 312-2000 Facsimile: (310) 312-3100 11 12 Attorneys for Defendant NESTLÉ DREYER’S ICE CREAM COMPANY 13 UNITED STATES DISTRICT COURT 14 EASTERN DISTRICT OF CALIFORNIA 15 FRESNO DIVISION 16 ANDREW PERKINS, CASE NO. 1:16-cv-01877-LJO-SKO 17 Plaintiff, 18 v. 19 20 21 22 23 24 25 26 27 28 NESTLÉ DREYER’S ICE CREAM COMPANY, Defendant. STIPULATED PROTECTIVE ORDER Plaintiff Andrew Perkins (“Plaintiff”) and Defendant Nestlé Dreyer’s Ice Cream Company 1 2 (“Defendant” and, together with Plaintiff, the “Parties”) hereby agree as follows: 3 1. INTRODUCTION 4 A. 5 Discovery in this action is likely to involve production of confidential, proprietary or 6 private information for which special protection from public disclosure and from use for any 7 purpose other than prosecuting this litigation may be warranted. Accordingly, the Parties hereby 8 stipulate to and petition the Court to enter the following Stipulated Protective Order. The Parties 9 acknowledge that this Order does not confer blanket protections on all disclosures or responses to PURPOSES AND LIMITATIONS 10 discovery and that the protection it affords from public disclosure and use extends only to the 11 limited information or items that are entitled to confidential treatment under the applicable legal 12 principles. 13 B. 14 This action is likely to involve valuable technical and/or proprietary information for which GOOD CAUSE STATEMENT 15 special protection from public disclosure and from use for any purpose other than prosecution of 16 this action is warranted. Such confidential and proprietary materials and information consist of, 17 among other things, information regarding Defendant’s confidential business practices, including 18 relevant human resources and safety policies and practices, confidential information implicating 19 privacy rights of third parties, including personnel documentation, and information otherwise 20 generally unavailable to the public, or which may be privileged or otherwise protected from 21 disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly, 22 to expedite the flow of information, to facilitate the prompt resolution of disputes over 23 confidentiality of discovery materials, to adequately protect information the parties are entitled to 24 keep confidential, to ensure that the parties are permitted reasonable necessary uses of such 25 material in preparation for and in the conduct of trial, to address their handling at the end of the 26 litigation, and serve the ends of justice, a protective order for such information is justified in this 27 matter. It is the intent of the parties that information will not be designated as confidential for 28 tactical reasons and that nothing be so designated without a good faith belief that it has been 2 1 maintained in a confidential, non-public manner, and there is good cause why it should not be part 2 of the public record of this case. 3 C. 4 The Parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 5 Protective Order does not entitle them to file confidential information under seal; Local Rule 141 6 sets forth the procedures that must be followed and the standards that will be applied when a party 7 seeks permission from the Court to file material under seal. Any document that is not confidential, privileged, or otherwise protectable in its entirety 8 9 will not be filed under seal if the confidential portions can be redacted. If documents can be 10 redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or 11 otherwise protectable portions of the document, shall be filed. 12 D. REASONS A COURT ORDER IS REQUIRED 13 Given the subject matter of this litigation, the Parties have requested and intend to produce 14 highly confidential medical information (including Plaintiff’s medical information), information 15 regarding third parties, and Defendant’s trade secret information. The Parties’ need for protection 16 should be addressed by a Court order, as opposed to a private agreement between the Parties, 17 because the sanctions available for violation of the Parties’ Stipulated Protective Order are 18 necessary given the sensitive nature of the documents and information to be produced. In 19 addition, only a Court order sufficiently protects the Parties’ interests if a non-party seeks access 20 or use of the Parties’ unfiled discovery materials at any future time. 21 2. 22 23 24 25 26 DEFINITIONS 2.1 Action: the instant action, titled Perkins v. Nestlé Dreyer’s Ice Cream Company, Case No. 1:16-cv-01877-LJO-SKO. 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is 27 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 28 of Civil Procedure 26(c), and as specified above in the Good Cause Statement. 3 2.4 2 3 4 5 Counsel: Outside Counsel of Record and House Counsel (as well as their support 2.5 1 Designating Party: a Party or Non-Party that designates information or items that it staff). produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.6 Disclosure or Discovery Material: all items or information, regardless of the 6 medium or manner in which it is generated, stored, or maintained (including, among other things, 7 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 8 responses to discovery in this matter. 9 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to 10 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 11 consultant in this Action. 12 13 14 15 16 2.8 House Counsel: attorneys who are employees of a Party to this Action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.9 Non-Party: any natural person, partnership, corporation, association or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a Party to this 17 Action but are retained to represent or advise a Party to this Action and have appeared in this 18 Action on behalf of that Party or are affiliated with a law firm that has appeared on behalf of that 19 Party, and includes support staff. 20 21 22 23 24 2.11 Party: any party to this Action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 2.13 Professional Vendors: persons or entities that provide litigation support services 25 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 26 organizing, storing, or retrieving data in any form or medium) and their employees and 27 subcontractors. 28 4 2.14 1 2 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 3 Receiving Party: a Party that receives Disclosure or Discovery Material from a 4 Producing Party. 5 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material 6 7 (as defined above), but also (1) any information copied or extracted from Protected Material; 8 (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 9 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the trial judge. 10 11 This Order does not govern the use of Protected Material at trial. 12 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 13 14 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 15 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 16 and defenses in this Action, with or without prejudice; and (2) final judgment herein after the 17 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 18 including the time limits for filing any motions or applications for extension of time pursuant to 19 applicable law. 20 5. 21 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 22 or Non-Party that designates information or items for protection under this Order must take care to 23 limit any such designation to specific material that qualifies under the appropriate standards. The 24 Designating Party must designate for protection only those parts of material, documents, items or 25 oral or written communications that qualify so that other portions of the material, documents, 26 items or communications for which protection is not warranted are not swept unjustifiably within 27 the ambit of this Order. 28 5 1 Mass, indiscriminate or routinized designations are prohibited. Designations that are 2 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 3 unnecessarily encumber the case development process or to impose unnecessary expenses and 4 burdens on other parties) may expose the Designating Party to sanctions. 5 If it comes to a Designating Party’s attention that information or items that it designated 6 for protection do not qualify for protection, that Designating Party must promptly notify all other 7 Parties that it is withdrawing the inapplicable designation. 8 9 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered, 10 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 11 designated before the material is disclosed or produced. 12 13 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, 14 but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 15 Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL 16 legend”), to each page that contains protected material. If only a portion of the material on a page 17 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 18 (e.g., by making appropriate markings in the margins). 19 A Party or Non-Party that makes original documents available for inspection need not 20 designate them for protection until after the inspecting Party has indicated which documents it 21 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. If only a portion of the material on a page 27 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 28 (e.g., by making appropriate markings in the margins). 6 (b) 1 for testimony given in depositions that the Designating Party identifies the 2 Disclosure or Discovery Material on the record, before the close of the deposition all protected 3 testimony. (c) 4 for information produced in some form other than documentary and for any 5 other tangible items, that the Producing Party affixes in a prominent place on the exterior of the 6 container or containers in which the information is stored the legend “CONFIDENTIAL.” If only 7 a portion or portions of the information warrants protection, the Producing Party, to the extent 8 practicable, shall identify the protected portion(s). 5.3 9 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 10 designate qualified information or items does not, standing alone, waive the Designating Party’s 11 right to secure protection under this Order for such material. Upon timely correction of a 12 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 13 in accordance with the provisions of this Order. 14 6. 15 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 16 confidentiality at any time that is consistent with the Scheduling Order for this case that the Court 17 entered on March 16, 2017. 18 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 19 process under either Local Rule 251 or Judge Oberto’s procedures for an Informal Telephonic 20 Conference re Discovery Dispute. 21 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via either a joint 22 stipulation pursuant to Local Rule 251(c) or Judge Oberto’s procedures for an Informal 23 Telephonic Conference re Discovery Dispute. 24 6.4 The burden of persuasion in any such challenge proceeding shall be on the 25 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 26 or impose unnecessary expenses and burdens on other Parties) may expose the Challenging Party 27 to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality 28 7 1 designation, all Parties shall continue to afford the material in question the level of protection to 2 which it is entitled under the Producing Party's designation until the Court rules on the challenge. 3 7. 4 ACCESS TO AND USE OF PROTECTED MATERIAL 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 Action only for prosecuting, 6 defending or attempting to settle this Action. Such Protected Material may be disclosed only to the 7 categories of persons and under the conditions described in this Order. When the Action has been 8 terminated, a Receiving Party must comply with the provisions of Section 13 below (FINAL 9 DISPOSITION). 10 11 12 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 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 Action; 18 19 20 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom 21 disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and 22 Agreement to Be Bound” (Exhibit A); 23 (d) the Court and its personnel; 24 (e) court reporters and their staff; 25 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 26 to whom disclosure is reasonably necessary for this Action and who have signed the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 28 8 (g) 1 2 the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) 3 during their depositions, witnesses, and attorneys for witnesses, in the 4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party requests that 5 the witness sign the form attached as Exhibit A hereto; and (2) they will not be permitted to keep 6 any confidential information unless they sign the “Acknowledgment and Agreement to Be Bound” 7 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the Court. Pages of 8 transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be 9 separately bound by the court reporter and may not be disclosed to anyone except as permitted 10 under this Stipulated Protective Order; and (i) 11 any mediator or settlement officer, and their supporting personnel, mutually 12 agreed upon by any of the Parties engaged in settlement discussions. 13 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 14 LITIGATION 15 If a Party is served with a subpoena or a court order issued in other litigation that compels 16 disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party 17 must: (a) 18 19 promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) 20 promptly notify in writing the party who caused the subpoena or order to 21 issue in the other litigation that some or all of the material covered by the subpoena or order is 22 subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective 23 Order; and 24 25 26 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena 27 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 28 before a determination by the court from which the subpoena or order issued, unless the Party has 9 1 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 2 expense of seeking protection in that court of its confidential material and nothing in these 3 provisions should be construed as authorizing or encouraging a Receiving Party in this Action to 4 disobey a lawful directive from another court. 5 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 6 (a) 7 The terms of this Order are applicable to information produced by a Non- 8 Party in this Action and designated as “CONFIDENTIAL.” Such information produced by Non- 9 Parties in connection with this litigation is protected by the remedies and relief provided by this 10 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 11 additional protections. In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s 12 13 confidential information in its possession, and the Party is subject to an agreement with the Non- 14 Party not to produce the Non-Party's confidential information, then the Party shall: (1) 15 promptly notify in writing the Requesting Party and the Non-Party 16 that some or all of the information requested is subject to a confidentiality agreement with a Non- 17 Party; (2) 18 promptly provide the Non-Party with a copy of the Stipulated 19 Protective Order in this Action, the relevant discovery request(s), and a reasonably specific 20 description of the information requested; and (3) 21 22 23 make the information requested available for inspection by the Non- Party, if requested. (b) If the Non-Party fails to seek a protective order from this Court within 14 24 days of receiving the notice and accompanying information, the Receiving Party may produce the 25 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 26 seeks a protective order, the Receiving Party shall not produce any information in its possession or 27 control that is subject to the confidentiality agreement with the Non-Party before a determination 28 10 1 by the Court. Absent a court order to the contrary, the Non-Party shall bear the burden and 2 expense of seeking protection in this Court of its Protected Material. 3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 4 5 Material to any person or in any circumstance not authorized under this Stipulated Protective 6 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 7 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 8 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 9 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 10 Agreement to Be Bound” that is attached hereto as Exhibit A. 11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 12 MATERIAL 13 When a Producing Party gives notice to Receiving Parties that certain inadvertently 14 produced material is subject to a claim of privilege or other protection, the obligations of the 15 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 16 provision is not intended to modify whatever procedure may be established in an e-discovery order 17 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 18 502(d) and (e), insofar as the Parties reach an agreement on the effect of disclosure of a 19 communication or information covered by the attorney-client privilege or work product protection, 20 the Parties may incorporate their agreement in the stipulated protective order submitted to the 21 Court. 22 12. MISCELLANEOUS 23 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 24 seek its modification by the Court in the future. 25 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 26 Order, no Party waives any right it otherwise would have to object to disclosing or producing any 27 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 28 11 1 Party waives any right to object on any ground to use in evidence of any of the material covered 2 by this Protective Order. 12.3 3 Filing Protected Material. A Party that seeks to file under seal any Protected 4 Material must comply with Local Civil Rule 141. Protected Material may only be filed under seal 5 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a 6 Party’s request to file Protected Material under seal is denied by the Court, then the Receiving 7 Party may file the information in the public record unless otherwise instructed by the Court. 8 13. FINAL DISPOSITION After the final disposition of this Action, as defined in Section 4, within 60 days of a 9 10 written request by the Designating Party, each Receiving Party must return all Protected Material 11 to the Producing Party or destroy such material. As used in this subdivision, “all Protected 12 Material” includes all copies, abstracts, compilations, summaries, and any other format 13 reproducing or capturing any of the Protected Material. Whether the Protected Material is returned 14 or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, 15 if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 16 (by category, where appropriate) all the Protected Material that was returned or destroyed and 17 (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, 18 summaries or any other format reproducing or capturing any of the Protected Material. 19 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, 20 motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 21 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert 22 work product, even if such materials contain Protected Material. Any such archival copies that 23 contain or constitute Protected Material remain subject to this Protective Order as set forth in 24 Section 4 (DURATION). 25 14. 26 27 VIOLATION Any violation of this Order may be punished by appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions. 28 12 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 DATED: May 5, 2017 3 4 5 /s/ Sebastian Miller [as authorized on May 5, 2017] Attorneys for Plaintiff 6 7 DATED: May 5, 2017 8 9 /s/ Emma Luevano Attorneys for Defendant 10 11 ORDER 12 13 14 15 IT IS SO ORDERED. Dated: May 9, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 13 . 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _________________________________ [print or type full name], of 4 _________________________ [print or type full address], declare under penalty of perjury that I 5 have read in its entirety and understand the Stipulated Protective Order that was issued by the 6 United States District Court for the Eastern District of California on [date] in the case of Andrew 7 Perkins v. Nestlé Dreyer’s Ice Cream Company, Case No. 1:16-cv-01877-LJO-SKO. I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I understand 9 and acknowledge that failure to so comply could expose me to sanctions and punishment in the 10 nature of contempt. I solemnly promise that I will not disclose in any manner any information or 11 item that is subject to this Stipulated Protective Order to any person or entity except in strict 12 compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the 13 United States District Court for the Eastern District of California for enforcing the terms of this 14 Stipulated Protective Order, even if such enforcement proceedings occur after termination of this 15 action. 16 I hereby appoint ___________________________ [print or type full name] of 17 ___________________________ [print or type full address and telephone number] as my 18 California agent for service of process in connection with this action or any proceedings related to 19 enforcement of this Stipulated Protective Order. 20 21 22 Date: City and State where sworn and signed: 23 24 25 Printed name: Signature: 26 27 28 14

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