Brignone v. Bluestem Brands, Inc.

Filing 9

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 1/12/17. (Kastilahn, A)

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DOLL AMIR & ELEY LLP 1 HUNTER R. ELEY (SBN 224321) 2 CHELSEA L. DIAZ (SBN 271859) 3 1888 Century Park East, Suite 1850 4 Los Angeles, California 90067 5 Tel: 310.557.9100 Fax: 310.557.9101 6 Attorneys for Defendant, 7 BLUESTEM BRANDS, INC. 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 13 RENE BRIGNONE, Plaintiff, 14 15 v. 16 BLUESTEM BRANDS, INC. dba FINGERHUT, 17 Defendant. 18 Case No. 2:16-cv-01703-TLN-KJN Assigned to District Judge Troy L. Nunley; referred to Magistrate Judge Kendall J. Newman STIPULATED PROTECTIVE ORDER Complaint Filed: July 22, 2016 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production 3 of confidential, proprietary, or private information for which special protection from 4 public disclosure and from use for any purpose other than prosecuting this litigation 5 may be warranted. Accordingly, the parties hereby stipulate to and petition the court 6 to enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to discovery 8 and that the protection it affords from public disclosure and use extends only to the 9 limited information or items that are entitled to confidential treatment under the 10 applicable legal principles. The parties further acknowledge, as set forth in Section 11 12.3, below, that this Stipulated Protective Order does not entitle them to file D OLL A MIR & E LEY LLP 12 confidential information under seal; Local Rule 141 sets forth the procedures that 13 must be followed and the standards that will be applied when a party seeks permission 14 from the court to file material under seal. 15 2. DEFINITIONS 16 2.1 Challenging Party: a Party or Non-Party that challenges the designation 17 of information or items under this Order. 18 2.2 “CONFIDENTIAL” Information or Items: information (regardless of 19 how it is generated, stored or maintained) or tangible things that qualify for protection 20 under Federal Rule of Civil Procedure 26(c) or any state or federal law. 21 2.3 Counsel (without qualifier): Outside Counsel of Record and House 22 Counsel (as well as their support staff). 23 2.4 Designating Party: a Party or Non-Party that designates information or 24 items that it produces in disclosures or in responses to discovery as 25 “CONFIDENTIAL.” 26 2.5 Disclosure or Discovery Material: all items or information, regardless of 27 the medium or manner in which it is generated, stored, or maintained (including, 28 among other things, testimony, transcripts, and tangible things), that are produced or 1 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 generated in disclosures or responses to discovery in this matter. 2 2.6 Expert: a person with specialized knowledge or experience in a matter 3 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 4 expert witness or as a consultant in this action. 5 2.7 House Counsel: attorneys who are employees of a party to this action. 6 House Counsel does not include Outside Counsel of Record or any other outside 7 counsel. 8 2.8 Non-Party: any natural person, partnership, corporation, association, or 9 other legal entity not named as a Party to this action. 10 2.9 Outside Counsel of Record: attorneys who are not employees of a party 11 to this action but are retained to represent or advise a party to this action and have D OLL A MIR & E LEY LLP 12 appeared in this action on behalf of that party or are affiliated with a law firm which 13 has appeared on behalf of that party. 14 2.10 Party: any party to this action, including all of its officers, directors, 15 employees, consultants, retained experts, and Outside Counsel of Record (and their 16 support staffs). 17 2.11 Producing Party: a Party or Non-Party that produces Disclosure or 18 Discovery Material in this action. 19 2.12 Professional Vendors: persons or entities that provide litigation support 20 services (e.g., photocopying, videotaping, translating, preparing exhibits or 21 demonstrations, and organizing, storing, or retrieving data in any form or medium) 22 and their employees and subcontractors. 23 2.13 Protected Material: any Disclosure or Discovery Material that is 24 designated as “CONFIDENTIAL.” 25 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material 26 from a Producing Party. 27 3. SCOPE 28 The protections conferred by this Stipulation and Order cover not only 2 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 Protected Material (as defined above), but also (1) any information copied or extracted 2 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 3 Protected Material; and (3) any testimony, conversations, or presentations by Parties 4 or their Counsel that might reveal Protected Material. However, the protections 5 conferred by this Stipulation and Order do not cover the following information: (a) 6 any information that is in the public domain at the time of disclosure to a Receiving 7 Party or becomes part of the public domain after its disclosure to a Receiving Party as 8 a result of publication not involving a violation of this Order, including becoming part 9 of the public record through trial or otherwise; and (b) any information known to the 10 Receiving Party prior to the disclosure or obtained by the Receiving Party after the 11 disclosure from a source who obtained the information lawfully and under no D OLL A MIR & E LEY LLP 12 obligation of confidentiality to the Designating Party. Any use of Protected Material 13 at trial shall be governed by a separate agreement or order. 14 4. DURATION 15 Even after final disposition of this litigation, the confidentiality obligations 16 imposed by this Order shall remain in effect until a Designating Party agrees 17 otherwise in writing or a court order otherwise directs. Final disposition shall be 18 deemed to be the later of (1) dismissal of all claims and defenses in this action, with or 19 without prejudice; and (2) final judgment herein after the completion and exhaustion 20 of all appeals, rehearings, remands, trials, or reviews of this action, including the time 21 limits for filing any motions or applications for extension of time pursuant to 22 applicable law. 23 5. DESIGNATING PROTECTED MATERIAL 24 5.1 Exercise of Restraint and Care in Designating Material for Protection. 25 Each Party or Non-Party that designates information or items for protection under this 26 Order must take care to limit any such designation to specific material that qualifies 27 under the appropriate standards. The Designating Party must designate for protection 28 only those parts of material, documents, items, or oral or written communications that 3 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 qualify – so that other portions of the material, documents, items, or communications 2 for which protection is not warranted are not swept unjustifiably within the ambit of 3 this Order. 4 If it comes to a Designating Party’s attention that information or items that it 5 designated for protection do not qualify for protection, that Designating Party must 6 promptly notify all other Parties that it is withdrawing the mistaken designation. 7 5.2 Manner and Timing of Designations. Except as otherwise provided in 8 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 9 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 10 under this Order must be clearly so designated before the material is disclosed or 11 produced. D OLL A MIR & E LEY LLP 12 Designation in conformity with this Order requires: 13 (a) for information in documentary form (e.g., paper or electronic 14 documents, but excluding transcripts of depositions or other pretrial or trial 15 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each 16 page that contains protected material. 17 (b) for testimony given in deposition or in other pretrial or trial 18 proceedings, that the Designating Party identify on the record, before the close of the 19 deposition, hearing, or other proceeding, all protected testimony. 20 (c) for information produced in some form other than documentary 21 and for any other tangible items, that the Producing Party affix in a prominent place 22 on the exterior of the container or containers in which the information or item is stored 23 the legend “CONFIDENTIAL.” If only a portion or portions of the information or 24 item warrant protection, the Producing Party, to the extent practicable, shall identify 25 the protected portion(s). 26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 27 failure to designate qualified information or items does not, standing alone, waive the 28 Designating Party’s right to secure protection under this Order for such material. 4 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 Upon timely correction of a designation, the Receiving Party must make reasonable 2 efforts to assure that the material is treated in accordance with the provisions of this 3 Order. 4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 6 designation of confidentiality at any time. Unless a prompt challenge to a Designating 7 Party’s confidentiality designation is necessary to avoid foreseeable, substantial 8 unfairness, unnecessary economic burdens, or a significant disruption or delay of the 9 litigation, a Party does not waive its right to challenge a confidentiality designation by 10 electing not to mount a challenge promptly after the original designation is disclosed. 11 6.2 Meet and Confer. The Challenging Party shall initiate the dispute D OLL A MIR & E LEY LLP 12 resolution process by providing written notice of each designation it is challenging 13 and describing the basis for each challenge. To avoid ambiguity as to whether a 14 challenge has been made, the written notice must recite that the challenge to 15 confidentiality is being made in accordance with this specific paragraph of the 16 Protective Order. The parties shall attempt to resolve each challenge in good faith and 17 must begin the process by conferring directly (in voice to voice dialogue; other forms 18 of communication are not sufficient) within 14 days of the date of service of notice. 19 In conferring, the Challenging Party must explain the basis for its belief that the 20 confidentiality designation was not proper and must give the Designating Party an 21 opportunity to review the designated material, to reconsider the circumstances, and, if 22 no change in designation is offered, to explain the basis for the chosen designation. A 23 Challenging Party may proceed to the next stage of the challenge process only if it has 24 engaged in this meet and confer process first or establishes that the Designating Party 25 is unwilling to participate in the meet and confer process in a timely manner. 26 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without 27 court intervention, the Challenging Party may file a motion challenging a 28 confidentiality designation at any time if there is good cause for doing so, including a 5 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 challenge to the designation of a deposition transcript or any portions thereof. Any 2 motion brought pursuant to this provision must be accompanied by a competent 3 declaration affirming that the movant has complied with the meet and confer 4 requirements imposed by the preceding paragraph. 5 The burden of persuasion in any such challenge proceeding shall be on the 6 Designating Party. Frivolous challenges, and those made for an improper purpose 7 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 8 expose the Challenging Party to sanctions. 9 7. 10 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 11 disclosed or produced by another Party or by a Non-Party in connection with this case D OLL A MIR & E LEY LLP 12 only for prosecuting, defending, or attempting to settle this litigation. Such Protected 13 Material may be disclosed only to the categories of persons and under the conditions 14 described in this Order. When the litigation has been terminated, a Receiving Party 15 must comply with the provisions of section 13 below (FINAL DISPOSITION). 16 Protected Material must be stored and maintained by a Receiving Party at a 17 location and in a secure manner that ensures that access is limited to the persons 18 authorized under this Order. 19 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 20 otherwise ordered by the court or permitted in writing by the Designating Party, a 21 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 22 only to: 23 (a) the Receiving Party’s Outside Counsel of Record in this action, as 24 well as employees of said Outside Counsel of Record to whom it is reasonably 25 necessary to disclose the information for this litigation and who have signed the 26 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A; 27 (b) the officers, directors, and employees (including House Counsel) 28 of the Receiving Party to whom disclosure is reasonably necessary for this litigation 6 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 2 A); 3 (c) Experts (as defined in this Order) of the Receiving Party to whom 4 disclosure is reasonably necessary for this litigation and who have signed the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters and their staff, professional jury or trial consultants, 8 mock jurors, and Professional Vendors to whom disclosure is reasonably necessary 9 for this litigation and who have signed the “Acknowledgment and Agreement to Be 10 Bound” (Exhibit A); 11 (f) during their depositions, witnesses in the action to whom D OLL A MIR & E LEY LLP 12 disclosure is reasonably necessary and who have signed the “Acknowledgment and 13 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating 14 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to 15 depositions that reveal Protected Material must be separately bound by the court 16 reporter and may not be disclosed to anyone except as permitted under this Stipulated 17 Protective Order. 18 (g) the author or recipient of a document containing the information or 19 a custodian or other person who otherwise possessed or knew the information. 20 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 21 IN OTHER LITIGATION 22 If a Party is served with a subpoena or a court order issued in other litigation 23 that compels disclosure of any information or items designated in this action as 24 “CONFIDENTIAL,” that Party must: 25 (a) promptly notify in writing the Designating Party. Such notification 26 shall include a copy of the subpoena or court order; 27 (b) promptly notify in writing the party who caused the subpoena or 28 order to issue in the other litigation that some or all of the material covered by the 7 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 subpoena or order is subject to this Protective Order. Such notification shall include a 2 copy of this Stipulated Protective Order; and 3 (c) cooperate with respect to all reasonable procedures sought to be 4 pursued by the Designating Party whose Protected Material may be affected. 5 If the Designating Party timely seeks a protective order, the Party served with 6 the subpoena or court order shall not produce any information designated in this 7 action as “CONFIDENTIAL” before a determination by the court from which the 8 subpoena or order issued, unless the Party has obtained the Designating Party’s 9 permission. The Designating Party shall bear the burden and expense of seeking 10 protection in that court of its confidential material – and nothing in these provisions 11 should be construed as authorizing or encouraging a Receiving Party in this action to D OLL A MIR & E LEY LLP 12 disobey a lawful directive from another court. 13 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 14 PRODUCED IN THIS LITIGATION 15 (a) The terms of this Order are applicable to information produced by 16 a Non-Party in this action and designated as “CONFIDENTIAL.” Such information 17 produced by Non-Parties in connection with this litigation is protected by the 18 remedies and relief provided by this Order. Nothing in these provisions should be 19 construed as prohibiting a Non-Party from seeking additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, 21 to produce a Non-Party’s confidential information in its possession, and the Party is 22 subject to an agreement with the Non-Party not to produce the Non-Party’s 23 confidential information, then the Party shall: 24 (1) promptly notify in writing the Requesting Party and the 25 Non-Party that some or all of the information requested is subject to a confidentiality 26 agreement with a Non-Party; 27 28 8 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 (2) promptly provide the Non-Party with a copy of the 2 Stipulated Protective Order in this litigation, the relevant discovery request(s), and a 3 reasonably specific description of the information requested; and 4 (3) make the information requested available for inspection by 5 the Non-Party. 6 (c) If the Non-Party fails to object or seek a protective order from this 7 court within 14 days of receiving the notice and accompanying information, the 8 Receiving Party may produce the Non-Party’s confidential information responsive to 9 the discovery request. If the Non-Party timely seeks a protective order, the Receiving 10 Party shall not produce any information in its possession or control that is subject to 11 the confidentiality agreement with the Non-Party before a determination by the court. D OLL A MIR & E LEY LLP 12 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 13 of seeking protection in this court of its Protected Material. 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 16 Protected Material to any person or in any circumstance not authorized under this 17 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 18 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 19 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 20 persons to whom unauthorized disclosures were made of all the terms of this Order, 21 and (d) request such person or persons to execute the “Acknowledgment and 22 Agreement to Be Bound” that is attached hereto as Exhibit A. 23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other protection, 27 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 28 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 9 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 may be established in an e-discovery order that provides for production without prior 2 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 3 parties reach an agreement on the effect of disclosure of a communication or 4 information covered by the attorney-client privilege or work product protection, the 5 parties may incorporate their agreement in the stipulated protective order submitted to 6 the court. 7 12. MISCELLANEOUS 8 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 9 person to seek its modification by the court in the future. 10 12.2 Right to Assert Other Objections. By stipulating to the entry of this 11 Protective Order no Party waives any right it otherwise would have to object to D OLL A MIR & E LEY LLP 12 disclosing or producing any information or item on any ground not addressed in this 13 Stipulated Protective Order. Similarly, no Party waives any right to object on any 14 ground to use in evidence of any of the material covered by this Protective Order. 15 12.3 Filing Protected Material. Without written permission from the 16 Designating Party or a court order secured after appropriate notice to all interested 17 persons, a Party may not file in the public record in this action any Protected Material. 18 A Party that seeks to file under seal any Protected Material must comply with Local 19 Rule 141. Protected Material may only be filed under seal pursuant to a court order 20 authorizing the sealing of the specific Protected Material at issue. Pursuant to Local 21 Rule 141, a sealing order will issue only upon a request establishing that the Protected 22 Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 23 protection under the law. 24 13. FINAL DISPOSITION 25 Within 60 days after the final disposition of this action, as defined in paragraph 26 4, each Receiving Party must return all Protected Material to the Producing Party or 27 destroy such material. As used in this subdivision, “all Protected Material” includes 28 all copies, abstracts, compilations, summaries, and any other format reproducing or 10 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 capturing any of the Protected Material. Whether the Protected Material is returned or 2 destroyed, the Receiving Party must submit a written certification to the Producing 3 Party (and, if not the same person or entity, to the Designating Party) by the 60 day 4 deadline that (1) identifies (by category, where appropriate) all the Protected Material 5 that was returned or destroyed and (2) affirms that the Receiving Party has not 6 retained any copies, abstracts, compilations, summaries or any other format 7 reproducing or capturing any of the Protected Material. Notwithstanding this 8 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 9 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 10 deposition and trial exhibits, expert reports, attorney work product, and consultant and 11 expert work product, even if such materials contain Protected Material. Any such D OLL A MIR & E LEY LLP 12 archival copies that contain or constitute Protected Material remain subject to this 13 Protective Order as set forth in Section 4 (DURATION). 14 15 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 16 17 DATED: January 10, 2017 KIMMEL & SILVERMAN, P.C. 18 By: /s/ Rachel Rebecca Stevens (as authorized on January 10, 2017) RACHEL REBECCA STEVENS Attorneys for Plaintiff, RENE BRIGNONE 19 20 21 22 23 DATED: January 12, 2017 DOLL AMIR & ELEY LLP 24 By: /s/ Hunter R. Eley Hunter R. Eley Attorneys for Defendant BLUESTEM BRANDS, INC. 25 26 27 28 11 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 2 PURSUANT TO STIPULATION, IT IS SO ORDERED. 3 4 Dated: January 12, 2017 5 6 7 8 9 10 11 D OLL A MIR & E LEY LLP 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _________________________ [print or type full name], of 4 _________________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Stipulated Protective Order 6 that was issued by the United States District Court for the Eastern District of 7 California on _________________________ [date] in the case of Rene Brignone v. 8 Bluestem Brands, Inc. d/b/a Fingerhut; Case No. 2:16-cv-01703-TLN-KJN. I agree 9 to comply with and to be bound by all the terms of this Stipulated Protective Order 10 and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will D OLL A MIR & E LEY LLP 12 not disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Eastern District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. 19 I hereby appoint _________________________ [print or type full name] of 20 _________________________ [print or type full address and telephone number] as 21 my California agent for service of process in connection with this action or any 22 proceedings related to enforcement of this Stipulated Protective Order. 23 24 Date: _________________________ 25 City and State where sworn and signed: _________________________ 26 Printed name: _________________________ 27 Signature: ________________________ 28 13 STIPULATED PROTECTIVE ORDER CASE NO. 2:16-CV-01703-TLN-KJN

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