Richard Stafford v. Dollar Tree Stores Inc et al
Filing
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PROTECTIVE AND FRE 502(d) & (e) CLAWBACK ORDER signed by Judge Kimberly J. Mueller on 5/30/2014. (Michel, G)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
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RICHARD STAFFORD,
Plaintiff,
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DOLLAR TREE STORES, INC. and
DOES 1 through 50, Inclusive,
PROTECTIVE AND FRE 502(d) & (e)
CLAWBACK ORDER
v.
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Case No. 2:13-CV-01187-KJM-CKD
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[with modifications made by court to plaintiff’s
proposed form of order shown in
strikeout/underline format]
Defendant.
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IT IS HEREBY ORDERED THAT:
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1.
In connection with discovery and other proceedings in this action, the parties may
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designate any document, thing, material, testimony or other information derived therefrom, as
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“Confidential Information” under the terms of this Protective Order (“Order”). Neither party shall
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designate any discovery material as “Confidential Information” without first making a determination
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that the information is properly subject to protection under Fed. R. Civ. P. 26(c) and that such
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protection is warranted in good faith. “Confidential Information” shall not be disclosed except as
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provided for herein.
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2.
“Confidential Information” may include:
(a)
Information that any party reasonably believes has not lawfully been made
public and which concerns or relates to the personnel information, processes, objectives, strategies,
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PLAINTIFF’S PROTECTIVE AND FRE 502(D) &
(E) CLAWBACK ORDER
Case No. 2:13-CV-01187-KJM-CKD
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plans, advertising, methodologies, procedures, operations, type of work, products, services, sales,
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purchases, transfers, identification of customers, customer information, bank and payroll related
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agreements, policies, marketing plans, vendor information, profit margins, product quantities and
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costs amount or source of income, costs, profits, losses, financial information, business forecasts, or
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expenditures of any person, firm, partnership, corporation, or other organization or organizational
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structure, if the disclosure of such information has the effect of causing harm or potential harm to the
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competitive position or privacy rights of the person, firm, partnership, corporation, or to the
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organization from which the information was obtained or of third parties, including but not limited to
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persons transacting business with any of the parties to this action.
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(b)
The personnel records of current or former employees or applicants of
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Defendant, Defendant’s parent company and affiliates, or non-parties acquired by or otherwise
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associated with Defendant; and,
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(c)
Any sensitive or private personal information, such as social security
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numbers, driver’s license numbers, home or business addresses, home or business phone numbers
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for any individual, financial or tax information, and medical information.
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3.
Documents that are confidential under this Order shall be so designated by writing,
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typing, stamping or otherwise affixing the legend “Confidential Information” (and such other and
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further legend as may reasonably be included to specify such confidentiality) on copies of the
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document. Stamping the legend “Confidential Information” on the cover of any multi-page
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document (or on the cover of a disk containing electronic data) shall designate all pages of the
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document as confidential, and all data contained on a disk as confidential, unless otherwise indicated
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by the producing party. Confidential documents (including deposition transcripts) also may be so
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designated after production by written communication and reproduction with a “Confidential
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Information” legend for purposes of substitution of the original documentation, and all parties shall
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use their best efforts to ensure that no prior disclosure shall be used or re-disclosed contrary to the
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terms of this Order.
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4.
The inadvertent or unintentional disclosure of “Confidential Information” shall not be
deemed a waiver in whole or in part of a party’s claim of confidentiality. Any such inadvertently or
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CLAWBACK ORDER
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unintentionally disclosed “Confidential Information” shall be designated as “Confidential
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Information” as soon as reasonably possible after the producing party becomes aware of the
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inadvertent or unintentional disclosure and the producing party shall provide counsel for the other
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parties with a duplicate copy bearing the legend “Confidential Information,” whereupon the
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unmarked copies will be returned or destroyed.
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5.
Portions of transcripts of depositions, in which any “Confidential Information” is
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quoted, paraphrased, discussed, or referred to, or in which the subject matter covered by any
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“Confidential Information” is discussed or referred to, shall be subject to the same confidential
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treatment as provided herein for the underlying “Confidential Information” and shall be designated
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as confidential. Requests for such confidential treatment may be made at the deposition or at the
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latest within twenty (20) calendar days after receipt of a transcript thereof. All transcripts of
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depositions shall be treated as Confidential for at least that 20-day period unless otherwise agreed
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upon by counsel or ordered by the Court.
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6.
Information designated as “Confidential Information” under this Order, and any
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summaries, copies (including electronic copies), abstracts, or other documents derived in whole or in
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part from information, designated as Confidential, shall be used only by the parties to this action; for
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the purpose of the prosecution, defense, or settlement of the claims asserted in this action, any trial
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and appeal of this action and the enforcement of any award or judgment based on such claims, and
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for no other purpose unless and until such designation is removed either by agreement of the parties
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or by order of the Court.
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7.
“Confidential Information” produced pursuant to this Order may be disclosed or
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made available only to counsel for a party (including the paralegal, clerical, and secretarial staff
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employed by such counsel), to a trier of fact or law in any forum in which the claims asserted in this
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action may be adjudicated or enforced and the administrators of that forum, and to “Qualified
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Persons.” A Qualified Person is a person who falls into one of the categories set forth below:
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(a)
A party, or a current or former officer, director, or employee of a party
deemed necessary by counsel to aid in the prosecution, defense or settlement of this action;
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CLAWBACK ORDER
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(b)
Experts or consultants (together with their staff) retained by such counsel to
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assist in the prosecution, defense or settlement of this action provided; however, that prior to
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disclosure of any “Confidential Information” to an expert or consultant, the party that wishes to
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make the disclosure shall affirm that the expert or consultant has not previously been retained by the
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non-disclosing party or a competitor of the non-disclosing party. (A competitor shall be defined as
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any discount variety retailer.) If the expert or consultant has been so retained, the parties shall meet
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and confer with each other and, if necessary, submit the issue to the Court prior to the disclosure to
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the expert or consultant of any “Confidential Information;”
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(c)
Witnesses testifying at deposition or at any hearing in this matter either during
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their testimony or in preparation therefore; however, if a witness refuses to sign the Nondisclosure
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Agreement, the parties shall meet and confer with each other and, if necessary, submit the issue to
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the Court prior to the disclosure to the witness of any “Confidential Information;”
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(d)
Any person to whom disclosure is reasonably necessary to enforce any award
or judgment rendered against any party in this proceeding;
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(e)
Any author or any recipient of any document or information;
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(f)
Independent legal translators retained to translate in connection with this
(g)
Independent copying, scanning, technical support and electronic document
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action;
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processing services retained by Counsel in connection with this action;
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(h)
Graphics, translation, or design services retained by Counsel for the purposes
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of preparing demonstrative or other exhibits for deposition, trial or otherwise in connection with this
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action;
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(i)
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connection with this action; and
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(j)
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Non-technical jury or trial consulting services retained by Counsel in
Any other person ordered by the Court or as to whom all parties in writing
agree.
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Any person or entity to whom “Confidential Information” is disclosed
pursuant to Subparagraphs 7 (a)-(j), above, shall, prior to receiving such Confidential Information,
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be provided with a copy of this Order and shall execute a Nondisclosure Agreement in the form set
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forth in Attachment A hereto, such forms to be maintained by counsel for the party sharing
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“Confidential Information” and undertaking to have such forms executed.
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9.
On the request of any party, any person who is not a Qualified Person shall be
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excluded from any deposition during the period in which “Confidential Information” is used,
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referred to or discussed.
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10.
The parties may further designate certain discovery material, testimony, or
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other information of an extraordinarily private, highly confidential, or propriety nature as
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“CONFIDENTIAL INFORMATION -- COUNSEL ONLY” (hereinafter “Counsel Only” Material
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in the manner described above. Such designation shall not be used routinely or to gain advantage in
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this litigation, but rather shall be used only in exceptional cases where the protections afforded by
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the “Confidential” classifications are insufficient. “Counsel Only” Material, and the information
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contained therein, shall be disclosed only to counsel for the parties (including the paralegal, clerical,
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and secretarial staff employed by such counsel) and to experts who execute local rules. “Counsel
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Only” Material may not be disclosed to opposing counsel’s clients pursuant to Professional Rules of
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Responsibility, Rule 3-700. If disclosure of “Counsel Only” Material is made pursuant to this
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Paragraph, all other provisions in this Order with respect to confidentiality shall also apply.
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The restrictions set forth in this Order shall not:
(a)
Apply to any discovery matter which a party can show was lawfully
possessed, obtained, or developed by it other than through discovery in this action;
(b)
Apply to any information which it lawfully possesses by other means or which
lawfully is or lawfully becomes public knowledge in a manner that is not in violation of this Order;
(c)
Operate as an admission by the recipient that any of the information contains
or reflects “Confidential Information;”
(d)
Prejudice in any way the right of any party or non-party to object on any basis
to the production of discovery matter it considers not subject to discovery;
(e)
Prejudice in any way the right of any party or non-party to seek a
determination from the Court as to whether particular information shall be produced;
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(f)
Prevent the parties from entering into a written agreement to alter or waive the
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provisions or protections provided herein, generally or with respect to any “Confidential
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Information;”
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(g)
Prejudice in any way the right of any party or non-party to seek such
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additional or other protection as that party may deem appropriate with regard to the confidentiality
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of the information;
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(h)
privileged or otherwise not subject to discovery;
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Be construed to require any party to produce information that it considers
(i)
Be deemed a waiver of any objections a party otherwise would have to any
discovery request propounded in this action or a waiver of any third party’s claim to right of privacy.
12.
This Order shall be without prejudice to the right of any party at any time after
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information is designated “Confidential Information” to file a motion with the Court, upon not less
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than ten (10) calendar days’ notice to all parties: (i) to challenge the designation of any particular
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document or information as Confidential or whether its use should be restricted, provided such party
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has first made a good-faith attempt to resolve such question with the designating party; or (ii) seek a
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separate protective order as to any particular document or information, including restrictions
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differing from those as specified herein. The Order shall not be deemed to prejudice the parties in
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any way in any future application for modifications of this Order.
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13.
The parties will mark any document that they believe should be filed under seal as
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“Confidential Information” or “Counsel Only” Material. Defendant’s use of such designations shall
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only apply to documents containing private, trade secret, business confidential, and proprietary
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information of the Defendant, the public disclosure of which would be detrimental to Defendant’s
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competitive interests or the privacy rights of its current and former employees.
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requirements provisions of this Court’s Standing Order, Paragraph 10 and Local Rules 140 and 141
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will apply to any request to file any document so designated until and unless a Court orders that the
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documents are not subject to seal.
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The sealing
The burden of establishing that any information designated as “Confidential
Information” or “Counsel Only” Material meets the definitions set forth herein shall be on the party
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CLAWBACK ORDER
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that seeks to uphold the designation. Any information or documents designated as “Confidential
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Information,” which are subject to sealing motion pursuant to Paragraph 13 shall be treated as
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“Confidential Information” in accordance with the terms of this Order until such time as the Court
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rules otherwise.
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15.
All documents produced in this proceeding designated “Confidential Information” or
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“Counsel Only” shall be used by the party to whom such documents are produced solely for
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purposes of the investigation and/or resolution of the claims arising in this action, any trial and
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appeal of this action, and the enforcement of any award thereon and for no other purpose except as
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otherwise required by law or by order of the Court.
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16.
Pursuant to FRE 502(d) and (e), the parties agree to and the Court orders protection of
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privileged and otherwise protected documents and electronically stored information against claims
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of waiver (including as against third parties and in other federal and state proceedings) in the event
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they are produced during the course of this litigation, whether pursuant to a Court Order, a party’s
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discovery request, or informal production, as follows:
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(a)
The inadvertent production of documents by a Producing Party subject to a
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legally recognized claim of privilege, including without limitation the attorney-client privilege, and
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work-product doctrine, to a Receiving Party, shall in no way constitute the voluntary disclosure of
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such document, data or information.
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(b)
The inadvertent production of any document in this action shall not result in
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the waiver of any privilege, evidentiary protection, or other protection associated with such
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document as to the Receiving Party, or any third parties, and shall not result in any waiver, including
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subject matter waiver, of any kind.
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(c)
If, during the course of this litigation, a party determines that any document
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protection, the Receiving Party shall: (a) refrain from reading the document any more closely than is
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necessary to ascertain that it is privileged; (b) immediately notify the Producing Party in writing that
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it has discovered documents believed to be privileged or protected; (c) specifically identify the
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produced by another party is on its face subject to a legally recognizable privilege or evidentiary
documents by Bates number range or hash value range, and, (d) where possible, return, sequester, or
PROTECTIVE AND FRE 502(D) & (E)
CLAWBACK ORDER
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destroy all copies of such documents, along with any notes, abstracts or compilations of the content
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thereof, within ten (10) business days of discovery by the Receiving Party. Where such documents
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cannot be destroyed or separated it shall not be reviewed, disclosed, or otherwise used by the
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Receiving Party. Notwithstanding, the Receiving Party is under no obligation to search or review
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the Producing Party’s documents to identify potentially privileged or work product protected
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documents.
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(d)
If the Producing Party intends to assert a claim of privilege or other protection
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over documents identified by the Receiving Party, the Producing Party will, within five (5) business
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days of receiving the Receiving Party’s written notification, inform the Receiving Party of such
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intention in writing and shall provide the Receiving Party with a log for such document, data or
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information that is consistent with the requirements of the Federal Rules of Civil Procedure, setting
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forth the basis for the claim of privilege or other protection, and in the event, if any portion of the
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document does not contain privileged or protected information, the Producing Party shall also
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provide to the Receiving Party a redacted copy of the document that omits the information that the
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Producing Party believes is subject to a claim of privilege or other protection.
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(e)
If, during the course of this litigation, a party determines it has produced a
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the Producing Party may notify the Receiving Party of such inadvertent production in writing, and
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demand the return of such documents. Such notice shall be in writing, however, it may be delivered
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orally on the record at a deposition, promptly followed up in writing. The Producing Party’s written
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notice will identify the document, data and/or information inadvertently produced by bates number
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range or hash value range, the privilege or protection claimed, and the basis for the assertion of the
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privilege and shall provide the Receiving Party with a log for such document that is consistent with
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the requirements of the Federal Rules of Civil Procedure, setting forth the basis for the claim of
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privilege or other protection, and in the event any portion of the document that does not contain
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privileged or protected information, the Producing Party shall also provide to the Receiving Party a
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redacted copy of the document that omits the information that the Producing Party believes is subject
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document protected from discovery by a legally recognized claim of privilege or other protection,
to a claim of privilege or other protection. After receiving such written notification, the Receiving
PROTECTIVE AND FRE 502(D) & (E)
CLAWBACK ORDER
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Party must, within ten (10) business days of receiving the written notification, return, sequester, or
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destroy the specified document and any copies, along with any notes, abstracts, or compilations of
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the content thereof.
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(f)
To the extent that an inadvertently produced document has been loaded into a
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litigation review database, the Producing Party can elect to either (i) have the document returned or
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destroyed via an extraction of the electronic copies from the database; or (ii) have the document
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disabled from further use or otherwise rendered inaccessible to the Receiving Party in the litigation
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review database. If the Producing Party selections option (i), it shall bear the costs of the return or
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destruction of such electronic copies.
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(g)
To the extent that the information contained in a document subject to a claim
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of privilege or other protection has already been used in or described in other documents generated
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or maintained by the Receiving Party, then the Receiving Party will sequester such documents until
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the claim has been resolved. If the Receiving Party disclosed the specified document before being
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notified of its inadvertent production, it must take reasonable steps to retrieve it. The Producing
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Party shall preserve the specified document until the claim is resolved.
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(h)
The Receiving Party’s return, sequestering, or destruction of such privileged
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or protected documents as provided herein will not act as a waiver of the Requesting Party’s right to
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move for the production of the returned, sequestered, or destroyed documents on the ground that the
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documents are not, in fact, subject to a viable claim of privilege or protection. However, the
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Receiving Party is prohibited and estopped from arguing that the production of the documents in this
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matter acts as a waiver of an applicable privilege or evidentiary protection, that the disclosure of the
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documents was not inadvertent, that the Producing Party did not take reasonable steps to prevent the
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disclosure of the privileged documents or that the producing party failed to take reasonable or timely
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steps to rectify the error pursuant to Federal Rule of Civil Procedure 26(b)(5)(B), or otherwise.
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(i)
Either party may submit the specified documents to the Court under seal for a
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determination of the claim of privilege or other protection and will provide the Court with the
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grounds for the asserted privilege or protection. The Receiving Party may not use the documents for
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PROTECTIVE AND FRE 502(D) & (E)
CLAWBACK ORDER
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any purpose absent this Court’s Order. Any party may request expedited treatment of any request
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for the Courts determination of the claim.
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(j)
Upon a determination by the Court that the specified documents are protected
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by the applicable privilege or evidentiary protection, and if the specified documents have been
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sequestered rather than returned or destroyed, the specified documents shall be returned or
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destroyed. The Court may also order the identification and/or review of documents that have been
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identified as being potentially subject to a legally recognized claim by search terms or other means.
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(k)
Nothing contained herein is intended to, or shall serve to limit a party’s right
and obligation to conduct a review of documents for relevance, responsiveness, or the segregation of
privileged and/or protected information.
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All “Confidential Information” or “Counsel-Only” information shall be returned to
the Producing Party as follows:
(a)
Within sixty (60) calendar days of the conclusion of the Litigation by settlement,
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Information” or “Counsel-Only” information, including any and all copies (including electronically-
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stored copies), abstracts, summaries, physical media by which data was transmitted, and readable
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reports or output from the physical media by which data was transmitted, shall be returned to the
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producing party or destroyed. Counsel for each party shall additionally certify to counsel for the
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opposing party, in writing, that any and all such “Confidential Information” or “Counsel-Only”
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information, including any and all copies (including electronically-stored copies), abstracts,
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summaries, physical media by which data was transmitted, and readable reports or output from the
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physical media by which data was transmitted, or produced by the opposing party, has been returned
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or destroyed. Notwithstanding this provision, and unless otherwise agreed upon by the parties in
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writing, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial,
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deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,
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expert reports, attorney work product, and consultant and expert work product, even if such
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materials contain “Confidential Information” or “Counsel-Only” information. Any such archival
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dismissal or entry of judgment, and subject to sub-paragraphs (c) and (d) below, all “Confidential
copies that contain or constitute Confidential Information or Counsel Only information remain
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subject to this Order as set forth herein. Even after the Final Disposition of the Litigation, the
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confidentiality obligations imposed by this Order will remain in effect until a designating party
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agrees otherwise in writing or a Court otherwise directs. “Final Disposition” means the later of (1)
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dismissal of all claims and defenses in this action, with or without prejudice and (2) final judgment
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in this action after the completion and exhaustion of all appeals, re-hearings, remands, trials, or
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reviews of this action, including the time limits for filing any motions or applications for extension
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of time pursuant to applicable law.
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(b)
If “Confidential Information” or “Counsel-Only” information is furnished to outside
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experts or consultants pursuant to Paragraph 7(b), the attorney for the party using such expert or
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consultant shall have the responsibility of ensuring, within sixty (60) calendar days of the
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termination of the litigation, that all such “Confidential Information” or “Counsel-Only” information
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including any and all copies (including electronically-stored copies), abstracts, summaries, physical
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media by which data was transmitted, and readable reports or output from the physical media by
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which data was transmitted, is returned to the producing party, and so certifying in writing as
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provided in sub-part (a) above.
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18.
This Order shall survive the final termination of this action and the Court shall retain
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jurisdiction to enforce, construe, or modify its terms for three (3) years after the final disposition of
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this action.
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DATED: May 30, 2014.
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UNITED STATES DISTRICT JUDGE
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ATTACHMENT A
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As a condition to inspecting or otherwise using documents and information produced in
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Stafford v. Dollar Tree Stores, Inc., Eastern District of California, Case No. 2:13-CV-01187-KJM-
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CKD, I certify that I have read the attached Stipulation and Protective and FRE 502(d) & (e)
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Clawback Order (the “Stipulation and Order”) regarding the handling of documents and information
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designated as “Confidential” or “Confidential Information -- Counsel Only” and hereby agree to
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make no use of such documents and/or information except as permitted by the express terms of the
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Stipulation and Order, to make no disclosure of such documents and/or information to persons other
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than those who may have access to it under such Stipulation and Order, to return all originals and all
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copies of such documents and/or information when required to do so under the Stipulation and
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Order, and otherwise to be bound by all of the terms and provisions of the Stipulation and Order.
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Dated: ______________________
Signed:_________________________________
PROTECTIVE AND FRE 502(D) & (E)
CLAWBACK ORDER
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