Lakes v. Bath & Body Works, LLC

Filing 38

PROTECTIVE ORDER signed by Magistrate Judge Gregory G. Hollows on 1/18/2018. (Washington, S)

WILLIAM L. DARBY, SBN 133325
LAW OFFICE OF WILLIAM L. DARBY
1300 Clay Street, Suite 600
Oakland, California 94612
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff,
CRYSTAL LAKES
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION
CRYSTAL LAKES, an individual,
Plaintiff,

CASE NO. 2:16-cv-02989-MCE-GGH
[PROPOSED] AGREED PROTECTIVE
ORDER

v.
BATH & BODY WORKS, LLC, a Delaware
limited liability company,

Action Filed:

October 4, 2016

Defendant.
The parties to this Agreed Protective Order (“Order”) have agreed to the terms of this
Order; accordingly, it is ORDERED:
1.

Scope. All materials produced or adduced in the course of discovery, including

responses to discovery requests, deposition testimony and exhibits, and information derived
directly therefrom (hereinafter collectively “documents”), shall be subject to this Order
concerning Confidential Information as defined below. This Order is subject to the Local Rules
of the United States District Court for the Eastern District of California and the Federal Rules of
Civil Procedure on matters of procedure and calculation of time periods.
2.

Confidential Information. As used in this Order, “Confidential Information”

means information designated as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” by
the producing party that falls within one or more of the following categories not otherwise

protected: (a) information prohibited from disclosure by statute; (b) information that reveals
trade secrets; (c) research, technical, commercial or financial information that the party has
maintained as confidential; (d) medical information, including protected health information
(“PHI”) concerning any individual; (e) personal identity information; (f) income tax returns
(including attached schedule and forms), W-2 forms and 1099 forms; or (g) personnel or
employment records of a person who is not a party to the case. Information or documents that
are available to the public may not be designated as Confidential Information.
3.

Designation.
(a)

A party may designate a document as Confidential Information for

protection under this Order by placing or affixing the words “CONFIDENTIAL-SUBJECT TO
PROTECTIVE ORDER” on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic images,
duplicates, extracts, summaries or descriptions that contain the Confidential Information. The
marking “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” shall be applied prior to or
at the time of the documents are produced or disclosed.

Applying the marking

“CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” to a document does not mean that
the document has any status or protection by statute or otherwise except to the extent and for the
purposes of this Order. Any copies that are made of any documents marked “CONFIDENTIALSUBJECT TO PROTECTIVE ORDER” shall also be marked, except that indices, electronic
databases or lists of documents that do not contain substantial portions or images of the text of
marked documents and do not otherwise disclose the substance of the Confidential Information
are not required to be marked. In the event a party wishes to designate documents and other
materials as Confidential Information after such document or information has been produced or

disclosed, the party may do so by following the procedures set forth in subparagraph 3(c) below.
A party may also designate documents or other materials produced by non-parties or the nondesignating party as Confidential Information by following the procedures set forth in
subparagraph 3(c) below.
(b)

The designation of a document as Confidential Information is a

certification by an attorney or a party appearing pro se that the document contains Confidential
Information as defined in this order.
(c)

If a party wishes to designate documents and other materials as

Confidential Information after they have been produced or disclosed: (i) the designating party
must provide written notice of the new designation to all parties (and the person who produced or
disclosed the documents or other materials if not a party) within twenty (20) days of production
or disclosure of the documents or other materials (a “Notice of Designation”); (ii) upon receipt of
the Notice of Designation, the parties shall treat as Confidential Information all copies of the
designated documents, other materials or deposition transcripts; and (iii) the new designation
applies retroactively as of the date and time of the original production.

With respect to

deposition transcripts of deposition testimony taken in the action, the parties shall follow the
procedures set forth in paragraph 4.
4.

Depositions.

A party may designate portions of any deposition or hearing transcript (including
exhibits) that contain Confidential Information as Confidential Information by either: (a) stating
on the record of the deposition or hearing that such deposition or hearing testimony, or portion
thereof, or exhibit is CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER”; or (b) stating in
writing served upon counsel of record up to twenty (20) days after receipt of the deposition or

hearing transcript that such deposition or hearing testimony, or some portion thereof, or exhibit is
Confidential Information.
5.

Protection of Confidential Material.
(a)

General Protections.

Confidential Information shall not be used or

disclosed by the parties, counsel for the parties or any other persons identified in subparagraph
(b) for any purpose whatsoever other than in this litigation, including any appeal thereof.
(b)

Limited Third-Party Disclosures. The parties and counsel for the parties

shall not disclose or permit the disclosure of any Confidential information to any third person or
entity except as set forth in subparagraphs (1)-(9). Subject to these requirements, the following
categories of persons may be allowed to review Confidential Information:
(1)

Counsel. Counsel for the parties and employees of counsel who
have responsibility for the action;

(2)

Parties. Individual parties (any employees thereof on a need to
know basis) and any relevant insurance carriers of a party, but only
to the extent counsel determines in good faith that their assistance
is reasonably necessary to the conduct/analysis of the litigation in
which the information is disclosed;

(3)

The Court and its personnel;

(4)

Court Reporters and Recorders. Court reporters and recorders
engaged for depositions;

(5)

Contractors. Those persons specifically engaged for the limited
purpose of making copies of documents or organizing or
processing documents, including outside vendors hired to process
electronically stored documents.

(6)

Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action but only after such persons have
completed the certification contained in Attachment A,
Acknowledgement of Understanding and Agreement to Be Bound.

(7)

(8)

Author or recipient. The author or recipient of the document (not
including a person who received the document in the course of
litigation); and

(9)

(c)

Witnesses at depositions. During their depositions, witnesses in
this action to whom disclosure is reasonably necessary. Witnesses
shall not retain a copy of documents containing Confidential
Information, except witnesses may receive a copy of all exhibits
marked at their depositions in connection with review of the
transcripts. Pages of transcribed deposition testimony or exhibits to
depositions that are designated as Confidential Information
pursuant to the process set out in this Order must be separately
bound by the court reporter and may not be disclosed to anyone
except as permitted under this Order.

Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions
as may be agreed or ordered.

Control of Documents. Counsel for the parties shall make reasonable

efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel
shall maintain either the originals or electronic versions of the forms signed by persons
acknowledging their obligations under this Order for a period of three years after the termination
of the case.
6.

Inadvertent Failure to Designate.

An inadvertent failure to designate a

document as Confidential Information does not, standing alone, waive the right to so designate
the documents; provided, however, that a failure to comply with paragraph 4 with respect to
deposition testimony, even if inadvertent, waives any protection for deposition testimony. No
party shall be found to have violated this Order for failing to maintain the confidentiality of
material during a time when the material had not been designated Confidential Information, even
where the failure to so designate was inadvertent and where the material is subsequently
designated as Confidential Information.

7.

Filing of Confidential Information. This Order does not, by itself, authorize the

filing of any document under seal. Any party wishing to file a document designated as
Confidential Information in connection with a motion, brief or other submission to the Court
must comply with the applicable Federal Rules of Civil Procedure and the Local Rules of the
United States District Court for the Eastern District of California.
8.

No Greater Protection of Specific Documents. Except on privilege grounds not

addressed by this Order, no party may withhold information from discovery on the ground that it
requires protection greater than that afforded by this Order unless the party moves for an order
providing such special protection.
9.

Challenges by a Party to Designation as Confidential Information.

The

designation of any material or document as Confidential Information is subject to challenge by
any party. The following procedure shall apply to any such challenge.
(a)

Meet and Confer. A party challenging the designation of Confidential

Information must do so in good faith and must begin the process by conferring directly with
counsel for the designating party. In conferring, the challenging party must explain the basis for
its belief that the confidentiality designation was not proper and must give the designating party
an opportunity to review the designated material, to reconsider the designation, and, if no change
in designation is offered, to explain the basis for the designation. The designating party must
respond to the challenge within five (5) business days.
(b)

Judicial Intervention. A party that elects to challenge a confidentiality

designation may file and serve a motion that identifies the challenged material and sets forth in
detail the basis for the challenge. Each such motion must be accompanied by a competent
declaration that affirms that the movant has complied with the meet and confer requirements of

this procedure. The burden of persuasion in any such challenge proceeding shall be on the
designating party. Until the Court rules on the challenge, all parties shall continue to treat the
materials as Confidential Information under the terms of this Order.
10.

Action by the Court. Applications to the Court for an order relating to material

or documents designated Confidential Information shall be by motion. Nothing in this Order or
any action or agreement of a party under this Order limits the Court’s power to make orders
concerning the disclosure of documents produced in discovery or at trial.
11.

Use of Confidential Documents or Information at Trial. Nothing in this Order

shall be construed to affect the use of any document, material, or information at any trial or
hearing. A party that intends to present or that anticipates that another party may present
Confidential Information at a hearing or trial shall bring that issue to the Court’s and parties’
attention by motion or in a pretrial memorandum without disclosing the Confidential
Information. The Court may thereafter make such orders as are necessary to govern the use of
such documents or information at trial.
12.

Confidential Information Subpoenaed or Ordered Produced in Other

Litigation.
(a)

If a receiving party is served with a subpoena or an order issued in other

litigation that would compel disclosure of any material or document designated in this action as
Confidential Information, the receiving party must so notify the designating party, in writing,
immediately and in no event more than three court days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
(b)

The receiving party also must immediately inform in writing the party

who caused the subpoena or order to issue in the other litigation that some or all of the material

covered by the subpoena or order is the subject of this Order. In addition, the receiving party
must deliver a copy of this Order promptly to the party in the other action that caused the
subpoena to issue.
(c)

The purpose of imposing these duties is to alert the interested persons to

the existence of this Order and to afford the designating party in this case an opportunity to try to
protect its Confidential Information in the court from which the subpoena or order issued. The
designating party shall bear the burden and the expense of seeking protection in that court of its
Confidential Information, and nothing in these provisions should be construed as authorizing or
encouraging a receiving party in this action to disobey a lawful directive from another court. The
obligations set forth in this paragraph remain in effect while the party has in its possession,
custody or control Confidential Information by the other party to this case.
13.

Challenges by Members of the Public to Sealing Orders. A party or interested

member of the public has a right to challenge the sealing of particular documents that have been
filed under seal, and the party asserting confidentiality will have the burden of demonstrating the
propriety of filing under seal.
14.

Inadvertent Disclosure of Privileged Information. In the event that a document

protected by the attorney-client privilege, work product doctrine, or other immunity is
inadvertently produced by any party to this proceeding, the party may request that the document
be returned. In the event that such a request is made, all parties to the litigation and their
counsel shall promptly return all copies of the document in their possession, custody, or control
to the producing party and the inadvertent disclosure of privileged information shall not be
deemed a waiver with respect to that document or other documents involving similar subject
matter.

15.

A Non-Party’s Protected Material Sought to be Produced in The Action. The

terms of this Order are applicable to information produced by a non-party in the action and
designated as Confidential Information. Such information produced by non-parties in connection
with the action is protected by the remedies and relief provided by this Order. Nothing in these
provisions should be construed as prohibiting a non-party from seeking additional protections.
16.

Obligations on Conclusion of Litigation.
(a)

Order Continues in Force. Unless otherwise agreed or ordered, this

Order shall remain in force after dismissal or entry of final judgment not subject to further
appeal.
(b)

Obligations at Conclusion of Litigation.

Within sixty days after

dismissal or entry of final judgment not subject to further appeal, all Confidential Information
and documents marked “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” under this
Order, including copies as defined in ¶ 3(a), shall be returned to the producing party or
destroyed, at the option of the party that received them unless the document has been offered into
evidence or filed without restriction as to disclosure. The parties agree that the receiving party
shall not be required to locate, isolate and return or destroy e-mails (including attachments to emails) that may include Confidential Information, or Confidential Information contained in
deposition transcripts or drafts or final expert reports.
(c)

Retention of Work Product and one set of Filed Documents.

Notwithstanding the above requirements to return or destroy documents, counsel may retain (1)
attorney work product, including an index that refers or relates to designated Confidential
Information so long as that work product does not duplicate verbatim substantial portions of
Confidential Information, and (2) one complete set of all documents filed with the Court

including those filed under seal. Any retained Confidential Information shall continue to be
protected under this Order. An attorney may use his or her work product in subsequent litigation,
provided that its use does not disclose or use Confidential Information.
17.

Order Subject to Modification. This Order shall be subject to modification by

the Court on its own initiative or on motion of a party or any other person with standing
concerning the subject matter.
18.

No Prior Judicial Determination.

This Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any document or
material designated Confidential Information by counsel or the parties is entitled to protection
under the Federal Rules of Civil Procedure or otherwise until such time as the Court may rule on
a specific document or issue.

17.

Persons Bound. This Order shall take effect when entered and shall be binding

upon all counsel of record and their law firms, the parties, and persons made subject to this Order
by its terms.
ENTERED:

TABET DIVITO & ROTHSTEIN LLC

LAW OFFICES OF JOHN A. BIARD

By:
Daniel L. Stanner, (admitted pro hac vice)
TABET DIVITO & ROTHSTEIN LLC
209 S. LaSalle Street, 7th Floor
Chicago, IL 60604
[phone]

By:

William L. Darby, SBN 133325
LAW OFFICE OF WILLIAM L. DARBY
1300 Clay Street, Suite 600
Oakland, CA 94612
[phone]
COUNSEL FOR PLAINTIFF CRYSTAL
LAKES

Shawn Moore
11070 White Rock Road, Suite 200
Rancho Cordova, CA 95670
[phone]
GOLDERG SEGALLA
By:
David S. Osterman (admitted pro hac vice)
902 Carnegie Boulevard West, Suite 100
Princeton, NJ 08540
[phone]
COUNSEL FOR DEFENDANT BATH &
BODY WORKS, LLC

IT IS SO ORDERED 1:
Dated: January 18, 2018
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

1

Paragraph 7 is modified to include: No party shall seek to file sealed documents unless the
substantive standards for sealing are satisfied. See Kamakana v. Cty. and City of Honolulu, 447
F.3d 1172, 1178-79 (9th Cir. 2006), i.e., “good cause” for sealing in reference to non-dispositive
motions; “compelling reasons” in reference to dispositive motions or trial..