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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SEBASTIAN L. MILLER (SBN 265793)
[e-mail]
SEBASTIAN MILLER LAW, P.C.
900 Lafayette Street, Suite 201
Santa Clara, CA 95050
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
Andrew Perkins

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EMMA LUEVANO (SBN 198421)
[e-mail]
JUSTINE LAZARUS (SBN 247471)
[e-mail]
MITCHELL SILBERBERG & KNUPP LLP
11377 West Olympic Boulevard
Los Angeles, CA 90064-1683
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
NESTLÉ DREYER’S ICE CREAM COMPANY

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FRESNO DIVISION
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ANDREW PERKINS,

CASE NO. 1:16-cv-01877-LJO-SKO

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Plaintiff,
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v.
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NESTLÉ DREYER’S ICE CREAM
COMPANY,
Defendant.

STIPULATED PROTECTIVE ORDER

Plaintiff Andrew Perkins (“Plaintiff”) and Defendant Nestlé Dreyer’s Ice Cream Company

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(“Defendant” and, together with Plaintiff, the “Parties”) hereby agree as follows:

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1.

INTRODUCTION

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A.

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Discovery in this action is likely to involve production of confidential, proprietary or

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private information for which special protection from public disclosure and from use for any

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purpose other than prosecuting this litigation may be warranted. Accordingly, the Parties hereby

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stipulate to and petition the Court to enter the following Stipulated Protective Order. The Parties

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

PURPOSES AND LIMITATIONS

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

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limited information or items that are entitled to confidential treatment under the applicable legal

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principles.

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B.

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This action is likely to involve valuable technical and/or proprietary information for which

GOOD CAUSE STATEMENT

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special protection from public disclosure and from use for any purpose other than prosecution of

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this action is warranted. Such confidential and proprietary materials and information consist of,

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among other things, information regarding Defendant’s confidential business practices, including

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relevant human resources and safety policies and practices, confidential information implicating

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privacy rights of third parties, including personnel documentation, and information otherwise

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generally unavailable to the public, or which may be privileged or otherwise protected from

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disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly,

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to expedite the flow of information, to facilitate the prompt resolution of disputes over

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confidentiality of discovery materials, to adequately protect information the parties are entitled to

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keep confidential, to ensure that the parties are permitted reasonable necessary uses of such

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material in preparation for and in the conduct of trial, to address their handling at the end of the

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litigation, and serve the ends of justice, a protective order for such information is justified in this

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matter. It is the intent of the parties that information will not be designated as confidential for

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tactical reasons and that nothing be so designated without a good faith belief that it has been
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maintained in a confidential, non-public manner, and there is good cause why it should not be part

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of the public record of this case.

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C.

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The Parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated

ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

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Protective Order does not entitle them to file confidential information under seal; Local Rule 141

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sets forth the procedures that must be followed and the standards that will be applied when a party

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seeks permission from the Court to file material under seal.
Any document that is not confidential, privileged, or otherwise protectable in its entirety

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will not be filed under seal if the confidential portions can be redacted. If documents can be

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redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or

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otherwise protectable portions of the document, shall be filed.

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D.

REASONS A COURT ORDER IS REQUIRED

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Given the subject matter of this litigation, the Parties have requested and intend to produce

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highly confidential medical information (including Plaintiff’s medical information), information

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regarding third parties, and Defendant’s trade secret information. The Parties’ need for protection

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should be addressed by a Court order, as opposed to a private agreement between the Parties,

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because the sanctions available for violation of the Parties’ Stipulated Protective Order are

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necessary given the sensitive nature of the documents and information to be produced. In

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addition, only a Court order sufficiently protects the Parties’ interests if a non-party seeks access

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or use of the Parties’ unfiled discovery materials at any future time.

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2.

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DEFINITIONS
2.1

Action: the instant action, titled Perkins v. Nestlé Dreyer’s Ice Cream Company,

Case No. 1:16-cv-01877-LJO-SKO.
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Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
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“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 Rule

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of Civil Procedure 26(c), and as specified above in the Good Cause Statement.
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2.4

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Counsel: Outside Counsel of Record and House Counsel (as well as their support

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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.”
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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 things,

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

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responses to discovery in this matter.

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Expert: a person with specialized knowledge or experience in a matter pertinent to

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the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a

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consultant in this Action.

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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.
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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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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 that has appeared on behalf of that

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Party, and includes support staff.

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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).
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Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this Action.
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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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2.14

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

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

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Producing Party.

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3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material

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

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(2) 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 Material.
Any use of Protected Material at trial shall be governed by the orders of the trial judge.

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This Order does not govern the use of Protected Material at trial.

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4.

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

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

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

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and defenses in this Action, with or without prejudice; and (2) final judgment herein after the

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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

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

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

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limit any such designation to specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of material, documents, items or

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oral or written communications that qualify so that other portions of the material, documents,

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items or communications for which protection is not warranted are not swept unjustifiably within

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the ambit of this Order.

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

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

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unnecessarily encumber the case development process or to impose unnecessary expenses and

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burdens on other parties) may expose the Designating Party to sanctions.

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

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

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Parties that it is withdrawing the inapplicable designation.

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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,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(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 Producing

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Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL

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legend”), to each page that contains protected material. If only a portion of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected portion(s)

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

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A Party or Non-Party that makes original documents available for inspection need not

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designate them for protection until after the inspecting Party has indicated which documents it

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would like copied and produced. During the inspection and before the designation, all of the

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material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting

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Party has identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this Order. Then,

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before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL

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legend” to each page that contains Protected Material. If only a portion of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected portion(s)

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

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for testimony given in depositions that the Designating Party identifies the

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Disclosure or Discovery Material on the record, before the close of the deposition all protected

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testimony.
(c)

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for information produced in some form other than documentary and for any

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other tangible items, that the Producing Party affixes in a prominent place on the exterior of the

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container or containers in which the information is stored the legend “CONFIDENTIAL.” If only

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a portion or portions of the information warrants protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is treated

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in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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confidentiality at any time that is consistent with the Scheduling Order for this case that the Court

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entered on March 16, 2017.

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6.2

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

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process under either Local Rule 251 or Judge Oberto’s procedures for an Informal Telephonic

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Conference re Discovery Dispute.

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6.3

Joint Stipulation. Any challenge submitted to the Court shall be via either a joint

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stipulation pursuant to Local Rule 251(c) or Judge Oberto’s procedures for an Informal

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Telephonic Conference re Discovery Dispute.

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6.4

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

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

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

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to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality

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designation, all Parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Producing Party's designation until the Court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed or

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produced by another Party or by a Non-Party in connection with this Action only for prosecuting,

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defending or attempting to settle this Action. Such Protected Material may be disclosed only to the

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categories of persons and under the conditions described in this Order. When the Action has been

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terminated, a Receiving Party must comply with the provisions of Section 13 below (FINAL

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DISPOSITION).

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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.
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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

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by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this Action;

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(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

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disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d)

the Court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional Vendors

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

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

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(g)

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the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;
(h)

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during their depositions, witnesses, and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party requests that

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the witness sign the form attached as Exhibit A hereto; and (2) they will not be permitted to keep

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any confidential information unless they sign the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the Court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be

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separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order; and
(i)

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any mediator or settlement officer, and their supporting personnel, mutually

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agreed upon by any of the Parties engaged in settlement discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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

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disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party

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must:
(a)

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promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;
(b)

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promptly notify in writing the party who caused the subpoena or order to

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

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subject to this Protective Order. Such notification shall include a copy of this Stipulated 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.
If the Designating Party timely seeks a protective order, the Party served with the subpoena

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or court order shall not produce any information designated in this action as “CONFIDENTIAL”

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before a determination by the court from which the subpoena or order issued, unless the Party has
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obtained the Designating Party’s permission. The Designating Party shall bear the burden and

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expense of seeking protection in that court of its confidential material and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in this Action to

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disobey a lawful directive from another court.

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9.

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

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(a)

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

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

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

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

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additional protections.
In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s

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confidential information in its possession, and the Party is subject to an agreement with the Non-

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Party not to produce the Non-Party's confidential information, then the Party shall:
(1)

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promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement with a Non-

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Party;
(2)

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promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and
(3)

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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

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

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

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seeks a protective order, the Receiving Party shall not produce any information in its possession or

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control that is subject to the confidentiality agreement with the Non-Party before a determination

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by the Court. Absent a court order to the contrary, the Non-Party shall bear the burden and

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expense of seeking protection in this Court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective

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

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

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Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the

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terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and

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

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain inadvertently
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produced material is subject to a claim of privilege or other protection, the obligations of the
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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
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provision is not intended to modify whatever procedure may be established in an e-discovery order
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that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence
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502(d) and (e), insofar as the Parties reach an agreement on the effect of disclosure of a
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communication or information covered by the attorney-client privilege or work product protection,
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the Parties may incorporate their agreement in the stipulated protective order submitted to the
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Court.
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12.

MISCELLANEOUS

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12.1

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

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seek its modification by the Court in the future.
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12.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

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Order, no Party waives any right it otherwise would have to object to disclosing or producing any
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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
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Party waives any right to object on any ground to use in evidence of any of the material covered

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by this Protective Order.
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Filing Protected Material. A Party that seeks to file under seal any Protected

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Material must comply with Local Civil Rule 141. Protected Material may only be filed under seal

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pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a

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Party’s request to file Protected Material under seal is denied by the Court, then the Receiving

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Party may file the information in the public record unless otherwise instructed by the Court.

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13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in Section 4, within 60 days of a

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written request by the Designating Party, each Receiving Party must return all Protected Material

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

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

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reproducing or capturing any of the Protected Material. Whether the Protected Material is returned

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or destroyed, the Receiving Party must submit a written certification to the Producing Party (and,

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if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

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

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

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summaries or any other format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings,

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

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

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work product, even if such materials contain Protected Material. Any such archival copies that

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contain or constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION).

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14.

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VIOLATION
Any violation of this Order may be punished by appropriate measures including, without

limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: May 5, 2017
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/s/ Sebastian Miller [as authorized on May 5, 2017]
Attorneys for Plaintiff

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DATED: May 5, 2017

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/s/ Emma Luevano
Attorneys for Defendant

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ORDER

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IT IS SO ORDERED.
Dated:

May 9, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _________________________________ [print or type full name], of

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_________________________ [print or type full address], declare under penalty of perjury that I

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have read in its entirety and understand the Stipulated Protective Order that was issued by the

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United States District Court for the Eastern District of California on [date] in the case of Andrew

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Perkins v. Nestlé Dreyer’s Ice Cream Company, Case No. 1:16-cv-01877-LJO-SKO. I agree to

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comply with and to be bound by all the terms of this Stipulated Protective Order and I understand

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and acknowledge that failure to so comply could expose me to sanctions and punishment in the

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nature of contempt. I solemnly promise that I will not disclose in any manner any information or

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

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compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the

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United States District Court for the Eastern District of California for enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after termination of this

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action.

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

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___________________________ [print or type full address and telephone number] as my

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California agent for service of process in connection with this action or any proceedings related to

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enforcement of this Stipulated Protective Order.

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Date:
City and State where sworn and signed:

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Printed name:
Signature:

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