Capp v. Nordstrom, Inc.

Filing 32

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Allison Claire on 9/26/14. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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) Case No. 2:13-CV-00660-MCE-AC
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) STIPULATED PROTECTIVE ORDER
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Plaintiff,
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vs.
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NORDSTROM, INC., a Washington
corporation; and DOES 1 through 50, inclusive, )
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Defendants.
)
ROBERT CAPP, on behalf of himself and all
others similarly situated,

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STIPULATED PROTECTIVE ORDER
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Plaintiff Robert Capp (“Plaintiff”) and Defendant Nordstrom, Inc. (“Nordstrom”), through

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their respective counsel of record in the above-captioned action, hereby stipulate to entry of this

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Stipulated Protective Order (the “Order”).

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I.

GOOD CAUSE STATEMENT
The parties acknowledge that disclosures and discovery in this litigation will include

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production of confidential, proprietary, trade secret, or otherwise private information for which

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special protection from public dissemination or disclosure (and from use for any purpose other than

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prosecuting and defending this matter) is warranted. Thus, this Order is required to prevent or limit

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disclosure of such information and documents that may be exchanged or produced in this case. The

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parties further acknowledge that this Order does not confer blanket protections on all disclosures or

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responses to discovery and that the protection it affords extends only to the limited information or

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items that are entitled to treatment as “CONFIDENTIAL.”
In the course of this litigation, there may be documents produced and/or testimony given

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which reveal confidential business information belonging to Nordstrom and personal information

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about Plaintiff or putative class members. For example, information about Nordstrom’s strategic

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business initiatives, business policies and procedures, training practices, and customer data and

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demographics information may be relevant to this litigation, but would be damaging if competitors

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or other third parties had full access and knowledge of such information. The terms of this

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stipulated protective order ensure the confidentiality of important and proprietary business and

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personal individual information while placing a minimal burden on the flow of discovery. The

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parties thus believe that there is good cause supporting such an order. Furthermore, the parties

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believe that the need for protection should be addressed by a court order, as opposed to a private

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agreement among the parties, due to the fact that, among other reasons, the putative class consists

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of individuals who are not currently parties, but may be in the future, and thus cannot be restrained

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by private agreement between the current parties to this action.

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II.

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DEFINITIONS
Except as otherwise expressly defined in this Order, the following definitions shall apply:

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2.01

Discovery Material. All items or information, regardless of the medium or manner

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generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible

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things) that are produced or generated in disclosures, responses to discovery, or other requests for

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documentation in this matter.

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2.02

“CONFIDENTIAL” Information or Items. Information (regardless of how

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generated, stored, or maintained) or tangible things that qualify for protection under the standards

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developed under either FRCP 26(c) or the definition of “trade secret” identified in California Civil

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Code § 3426.1. Among other things, the parties anticipate that information designated as

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Confidential Information will include corporate policies and procedures, training materials,

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strategic business initiatives or tactics, sensitive financial information about the parties, documents

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related to high-level executive meetings, proprietary technical information, and employee or

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customer information.

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2.03

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in this case.

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2.04

Producing Party. A party that produces Discovery Material in this case.

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2.05

Designating Party. A Party that designates information or items that it produces in

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Receiving Party. A party that receives Discovery Material from a Producing Party

disclosures or in responses to discovery or otherwise.
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Protected Material. Any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”
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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. This definition includes a professional jury or trial consultant retained in

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connection with this litigation. An expert for purposes of this Order shall not include anyone who

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is a past or current employee of a party or a competitor of a party.

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Outside Counsel. Attorneys who are not employees of a party, but who are retained

to represent a party in this action.
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In-House Counsel. Attorneys who are employees of a party.

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III.

SCOPE
The protections conferred by this Order cover not only Protected Material, but also any

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information copied or extracted from such material, as well as all copies, excerpts, summaries, or

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compilations, plus testimony, conversations, or presentations by parties or counsel to or in this

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litigation that might reveal Protected Material. Nothing in the Order shall be construed as requiring

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disclosure of documents, information, or any other materials that are privileged in nature, or subject

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to the attorney-client privilege or the attorney work-product doctrine, and/or documents,

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information, or other materials that are, or may be claimed to be, otherwise beyond the scope of

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permissible discovery.

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IV.

DURATION
This order shall apply from the time it is entered, and shall remain in effect until a court

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order directs otherwise.

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V.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Care in Designating Material for Protection. Each party that

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designates information or items for protection under this Order must take care to limit any such

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designation to specific material that qualifies under the appropriate standards. A Designating Party

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must take care to designate for protection only those parts of material, documents, items, or oral or

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

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communications for which protection is not warranted are not swept unjustifiably within the ambit

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of this Order.

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If it comes to a party’s attention that information or items that it designated for protection

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do not qualify for protection at all, or do not qualify for the level of protection initially asserted,

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that party must promptly notify all other parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order,

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or as otherwise stipulated or ordered, material that qualifies for protection under this Order must be

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clearly so designated before the material is disclosed or produced:

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(a)

For information in documentary form (apart from transcripts of depositions

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or other pretrial or trial proceedings), that the Producing Party affix the legend
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“CONFIDENTIAL” at the top or bottom of each page that contains Protected

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Material.

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(b)

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that the Designating Party within seven days of the deposition, hearing, or other

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proceeding, shall designate and specify any portions of the testimony that qualify as

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Confidential. When it is impractical to identify separately each portion of testimony

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that is entitled to protection, the Designating Party may later identify within a

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reasonable period the specific portions of the testimony as to which protection is

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sought. Transcript pages containing Protected Material must be separately bound by

For testimony given in deposition or in other pre-trial or trial proceedings,

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the court reporter, who must affix to the top of each such page the legend

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“CONFIDENTIAL” as instructed by the Designating Party.

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(c)

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other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL.” If only portions of the information or item warrant

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protection, the Producing Party, to the extent practicable, shall identify the protected

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portions.

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5.3

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

Inadvertent Failure to Designate or Disclosure. An inadvertent failure to

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designate qualified information or items as “CONFIDENTIAL” does not waive the Designating

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Party’s right to secure protection under this Order for such material. If material is designated as

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“CONFIDENTIAL” after the material was initially produced, the Receiving Party, on timely

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notification of the designation, must make reasonable efforts to assure that the material is treated in

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accordance with the provisions of this Order. Additionally, the parties recognize the possibility of

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inadvertent production of materials to which a party may make a claim of privilege or of protection

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from discovery as trial preparation material. The inadvertent production of such material shall not

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operate as a waiver of that privilege or protection and shall not operate as any subject matter waiver

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of that privilege or protection. The Receiving Party, on timely notification of the inadvertent

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production, must make reasonable efforts to assure that the material is returned to the Producing

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Party or treated in accordance with the provisions of this agreement.
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Challenging Other Party’s Designation. A party shall not be obligated to

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challenge the propriety of any “CONFIDENTIAL” designation at the time made, and failure to do

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so shall not preclude a subsequent challenge or constitute an admission that such designation was

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proper. If a party contends that any material is not entitled to “CONFIDENTIAL” treatment,

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within thirty calendar days of learning the facts giving rise to the objection such party shall request

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a conference of counsel. A good faith effort to confer requires a face-to-face meeting or a

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telephone conference. If an agreement cannot be reached during the conference of counsel, the

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party challenging the “CONFIDENTIAL” designation may request an order from the Court

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regarding the confidentiality of the material. The material shall be treated as designated (i.e.,

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“CONFIDENTIAL”) until a decision has been reached by the Court.

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VI.

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ACCESS TO AND USE OF PROTECTED MATERIAL
6.1

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

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disclosed or produced by another party in connection with this case for prosecuting and defending

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this litigation. Such Protected Material may be disclosed only to the Court and to the categories of

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persons described in this Order who are permitted access to such Protected Material. No other

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persons shall be provided with the Protected Material. Counsel for a Receiving Party which

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provides Protected Material to a permitted person specified below shall maintain a copy of the

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signed “Agreement to Be Bound by Protective Order” (Exhibit A).

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6.2

“CONFIDENTIAL” Information May Be Disclosed Only to the Following
Persons:

Protected Material designated as “CONFIDENTIAL” may be disclosed only to the
following persons:

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(a)

The Court and its personnel;

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(b)

The author of the document or the original source of the information;

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(c)

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The Receiving Party’s Outside Counsel of record in this action, as well as

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

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information for this litigation;
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The parties, including any officers, directors, and employees (including In-

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House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

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litigation.

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(e)

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Court reporters, their staff, and professional vendors to whom disclosure is

reasonably necessary for this litigation;
(f)

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Experts (as defined in this Order) of the Receiving Party to whom disclosure

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is reasonably necessary for this litigation and who have signed the “Agreement to Be Bound

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by Protective Order” (Exhibit A);
(g)

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During their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Agreement to Be Bound by Protective

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Order” (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material must be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Stipulated Protective Order.

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6.3

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Unless otherwise ordered by the Court or agreed in writing by the Designating Party, a party

Provision of Confidential Information to Prospective Witnesses/Experts

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that seeks to disclose to a prospective witness any “CONFIDENTIAL” Information or Items must

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comply with the procedures of this paragraph.

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(a) The party first must make a written request to the Designating Party that (1)

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identifies the specific “CONFIDENTIAL” Information or Items that the Receiving Party

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seeks permission to disclose to the prospective witness, and (2) sets forth the full name of

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the prospective witness or party and the address of his or her primary residence.

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(b) A party that makes a request and provides the information specified in paragraph

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6.3(a) above must wait seven calendar days after complying with paragraph 6.3(a) and then

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may disclose the subject Protected Material to the identified prospective witness unless,

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within six calendar days of receipt of the request, the party receives a written objection from
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the Designating Party. Any such objection must set forth in detail the grounds on which it

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is based.
(c) If the party that receives a timely written objection from the Designating Party

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does not agree with the Designating Party’s position, it shall request a conference of

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counsel. If an agreement cannot be reached during the conference of counsel, the party

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seeking to disclose “CONFIDENTIAL” Information or Items to a prospective witness may

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request an order from the Court allowing disclosure to the prospective witness.

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6.4

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Duty to Maintain “Protected Material” Securely. Protected Material must be

stored and maintained by a Receiving Party in a secure manner that ensures that access is limited to

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the persons authorized under this Order. Nothing in this Order shall be deemed to restrict in any

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way any Producing Party with respect to the use of its own Protected Material.
6.5

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Presentation Of Protected Material To Court. For any documents, pleadings,

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applications, or motions submitted to the Court by any party, in connection with any proceeding

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other than a discovery motion, that attach, quote from, or refer to the substance of documents or

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materials containing or consisting of “CONFIDENTIAL” Information or Items, the submitting

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party shall request the Court to seal such document(s) in accordance with Local Rule 141(b) unless

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the Designating Party has disclosed the Protected Material in a previous public filing with the

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Court.

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VII.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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If a Receiving Party is served with a subpoena or an order issued in other litigation that

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would compel disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” the Receiving Party must notify the Designating Party in writing within a

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reasonable time period and in no event more than five court days after receiving the subpoena or

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order. Such notification must include a copy of the subpoena or court order. The Receiving Party

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also must immediately inform in writing the party who caused the subpoena or order to issue in the

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

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Order. In addition, the Receiving Party must deliver a copy of this Order promptly to the party in

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the other action that caused the subpoena or order to issue.
The purpose of imposing these duties is to alert the interested parties to the existence of this

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Order and to afford the Designating Party in this case an opportunity to protect its confidentiality

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interests in the court from which the subpoena or order issued.

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VIII. 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 Order, the Receiving Party

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must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b)

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use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons

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to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such

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person or persons to execute the “Agreement to Be Bound By Protective Order” that is attached as

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Exhibit A to this Order. The Designating Party reserves all rights against the Receiving Party for

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its violations. In the event any party or person violates or threatens to violate any term of this

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Order, any party may seek immediate injunctive relief against any such party or person violating or

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threatening to violate any term of this Order.

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IX.

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FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party, within thirty calendar

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days after the final termination of this litigation (including any appeals or court review), each

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Receiving Party, upon written request by opposing counsel, must return all Protected Material to

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the Producing Party. As used in this subdivision, all Protected Material includes all copies,

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abstracts, compilations, summaries, or any other form of reproducing or capturing any of the

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Protected Material. With express permission in writing from the Producing Party, the Receiving

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Party may destroy some or all of the Protected Material instead of returning it. Whether the

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

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under penalty of perjury to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the thirty calendar day deadline that affirms that the Receiving Party has not

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retained any copies, abstracts, compilations, summaries, or other forms of reproducing or capturing
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any of the Protected Material. Notwithstanding this provision, counsel are entitled to retain one

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archival copy of all pleadings, exhibits used in the litigation, motion papers, transcripts, legal

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memoranda, correspondence, or attorney work-product, even if such materials contain Protected

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Material. Any such archival copies that contain or constitute Protected Material remain subject to

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this Order.

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X.

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MISCELLANEOUS
11.1

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. Each party expressly acknowledges that such

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modifications may become necessary.

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11.2

Enforcement. Each party and person bound by this Order, including all those who

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have executed Exhibit A, agrees that the United States District Court for the Eastern District of

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California has jurisdiction to enforce the terms of this Order, and that such jurisdiction continues

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beyond the date this matter is concluded. The Court shall retain jurisdiction over all parties and

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persons who have received Protected Material for the purpose of enforcing the provisions of the

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Order after the action is otherwise terminated, making such rulings and entering such orders as may

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be necessary to compel compliance and impose sanctions as the Court shall determine. Should a

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dispute materialize concerning whether a person was improperly provided Protected Material, the

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party in possession of Exhibit A for that person shall provide it to the complaining party upon five

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court days’ written notice.

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11.3

Right to Assert Other Objections. By stipulating to the entry of this Order, no

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party waives any right it otherwise would have to object to disclosing or producing any information

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or item on any ground not addressed in this Order. The parties specifically agree that they shall not

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use this Order to support a waiver argument in any discovery motion, or to argue that any party

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waived its objections to produce any particular documents or information.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: September 25, 2014

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LINDSAY LAW CORPORATION
By:

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/s/ James M. Lindsay
James M. Lindsay

Attorney for Plaintiff
ROBERT CAPP

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Dated: September 25, 2014

DAVIS WRIGHT TREMAINE LLP

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By:

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/s/ James D. Nguyen
James D. Nguyen

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Attorneys for Defendant
NORDSTROM, INC.

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STIPULATED PROTECTIVE ORDER
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ORDER

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Upon good cause shown, the Court orders that all documents and testimony designated
CONFIDENTIAL are to be protected under the terms of this Protective Order.

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Dated: September 26, 2014

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STIPULATED PROTECTIVE ORDER
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EXHIBIT A

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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I, _______________________, of ________________________ have read in its entirety

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and understand the Stipulated Protective Order (“Order”) in the litigation of Capp. v. Nordstrom,

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Inc., United States District Court for the Eastern District of California Case Number 2:13-cv-

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00660-MCE-AC. I agree to comply with and to be bound by all the terms of this Order. I solemnly

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promise that I will not disclose in any manner any information or item that is subject to this Order

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to any person or entity except in strict compliance with the provisions of this Order. I fully

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understand that if I violate any provision of the Order, I will be subject to sanctions by the Court, in

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addition to any other remedies that a party may have. If I am not a party to this dispute, I agree that

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the Court may enforce this agreement at any time, including following the conclusion of this

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matter, and that an action may be brought in the United States District Court for the Eastern District

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of California to enforce the terms of this Order, and I submit to the jurisdiction of this Court.

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I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

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Signature:

__________________________

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Full Name:

__________________________

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Address:

__________________________

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Dated: __________________

__________________________

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Phone Number:

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