Pasini v. Party City Corporation

Filing 12

STIPULATION AND PROTECTIVE ORDER signed by Magistrate Judge Edmund F. Brennan on 9/28/17. (Mena-Sanchez, L)

1 DAVID F. FAUSTMAN, SBN 81862
TYREEN G. TORNER, SBN 249980
2 FOX ROTHSCHILD LLP
345 California Street, Suite 2200
3 San Francisco, CA 94104
Telephone: [phone]
4 Facsimile: [phone]
Email: [e-mail]
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[e-mail]
6 ANDREW W. RUSSELL, SBN 280669
FOX ROTHSCHILD LLP
7 1800 Century Park East, Suite 300
Los Angeles, CA 90067
8 Telephone: [phone]
Facsimile: [phone]
9 Email: [e-mail]
10 Attorneys for Defendant
PARTY CITY CORPORATION
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOAN PASINI, on behalf of herself and all
others similarly situated,

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The Honorable William B. Shubb,
Senior United States District Judge

Plaintiff,

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Case No.: 2:17-cv-00962-WBS-EFB

v.

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STIPULATION FOR PROTECTIVE
ORDER AND [PROPOSED] ORDER

PARTY CITY CORPORATION; and DOES 1
through 10, inclusive,
Defendants.

Trial Date:

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None Set

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IT IS HEREBY STIPULATED AND AGREED by and between Defendant Party City
Corporation, (“Defendant”) and Plaintiff Joan Pasini (“Plaintiff”) (collectively, the “Parties”),
through their respective attorneys of record undersigned below, that in order to facilitate the prompt
and thorough exchange of documents between the Parties, and with regard to documents produced
and/or exchanged by Defendants or Plaintiffs in the course of this action which contain private,
confidential, proprietary, commercial, and/or trade-secret information of Defendants or Plaintiffs, the
following procedures shall govern:
1.

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Disclosure and discovery activity in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from public disclosure
and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
the Parties hereby stipulate to and petition the Court to enter the following Stipulated Protective
Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures
or responses to discovery and that the protection it affords from public disclosure and use extends
only to the limited information or items that are entitled to confidential treatment under the
applicable legal principles. The Parties further acknowledge, as set forth in Section 12.3, below, that
this Stipulated Protective Order does not entitle them to file confidential information under seal;
Civil Local Rule 141 sets forth the procedures that must be followed and the standards that will be
applied when a party seeks permission from the court to file material under seal.
2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.

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PURPOSES AND LIMITATIONS

2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
Civil Procedure 26(c), and/or that contain: (i) trade secret information as defined by Cal. Civ. Code
§3426.11; (ii) confidential proprietary, financial, or medical information pertaining to a Party; (iii)

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Cal. Civ. Code §3426.1(d) provides that “Trade secret means information, including a formula,
pattern, compilation, program, device, method, technique, or process, that: (1) Derives
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internal company operations documents not readily available to the public; (iv) information which, if
disclosed, could constitute a violation of any third party’s right of privacy or otherwise violates an
obligation of confidentiality owed to a third party, such as personnel records and medical records,
and other records containing employee social security numbers, dates of birth, home addresses,
telephone numbers, and e-mail addresses; and/or (v) information or material that may not be
disclosed pursuant to any federal or state law or regulation,.
2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well

as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or items that it

produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5

Disclosure or Discovery Material: all items or information, regardless of the medium

or manner in which it is generated, stored, or maintained (including, among other things, testimony,
transcripts, and tangible things), that are produced or generated in disclosures or responses to
discovery in this matter.
2.6

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

the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
consultant in this action.
2.7

House Counsel: attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8

Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.
2.9

Outside Counsel of Record: attorneys who are not employees of a party to this action

but are retained to represent or advise a party to this action and have appeared in this action on
behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
2.10

Party: any party to this action, including all of its officers, directors, employees,

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independent economic value, actual or potential, from not being generally known to the
public or to other persons who can obtain economic value from its disclosure or use; and (2)
Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
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consultants, retained experts, and Outside Counsel of Record (and their support staffs).

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2.11

Material in this action.

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2.12

storing, or retrieving data in any form or medium) and their employees and subcontractors.
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2.14

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Receiving Party: a Party that receives Disclosure or Discovery Material from a

Producing Party.
3.

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

“CONFIDENTIAL.”

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Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,

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

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

defined above), but also (1) any information copied or extracted from Protected Material; (2) all
copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a Receiving
Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
publication not involving a violation of this Order, including becoming part of the public record
through trial or otherwise; and (b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
information lawfully and under no obligation of confidentiality to the Designating Party. Any use of
Protected Material at trial shall be governed by a separate agreement or order.
4.

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

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and

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defenses in this action, with or without prejudice; and (2) final judgment herein after the completion
and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the
time limits for filing any motions or applications for extension of time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

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

Non-Party that designates information or items for protection under this Order must take care to
limit any such designation to specific material that qualifies under the appropriate standards. The
Designating Party must designate for protection only those parts of material, documents, items, or
oral or written communications that qualify – so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept unjustifiably within
the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
encumber or retard the case development process or to impose unnecessary expenses and burdens on
other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it designated for
protection do not qualify for protection, that Designating Party must promptly notify all other Parties
that it is withdrawing the mistaken designation.
5.2

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

(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but excluding
transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the
legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or
portions of the material on a page qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents or materials available for inspection
need not designate them for protection until after the inspecting Party has indicated which material it
would like copied and produced. During the inspection and before the designation, all of the material
made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
identified the documents it wants copied and produced, the Producing Party must determine which
documents, or portions thereof, qualify for protection under this Order. Then, before producing the
specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page
that contains Protected Material. If only a portion or portions of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
Designating Party identify on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony.

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(c) for information produced in some form other than documentary and for any other
tangible items, that the Producing Party affix in a prominent place on the exterior of the container or
containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a
portion or portions of the information or item warrant protection, the Producing Party, to the extent
practicable, shall identify the protected portion(s).

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5.3

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

designate qualified information or items does not, standing alone, waive the Designating Party’s
right to secure protection under this Order for such material. Disclosure of such documents,
information, responses or testimony to persons not authorized to receive “CONFIDENTIAL”
Information, as described below in section 7.2, prior to the designation, shall not be deemed a
violation of this Order. However, upon timely correction of a designation, the Receiving Party must
make reasonable efforts to assure that the material is treated in accordance with the provisions of this
Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,
or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a
confidentiality designation by electing not to mount a challenge promptly after the original
designation is disclosed.
6.2

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

by providing written notice of each designation it is challenging and describing the basis for each
challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
recite that the challenge to confidentiality is being made in accordance with this specific paragraph
of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must
begin the process by conferring directly (in voice to voice dialogue; other forms of communication
are not sufficient) within 14 days of the date of service of notice. 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
circumstances, and, if no change in designation is offered, to explain the basis for the chosen
designation. A Challenging Party may proceed to the next stage of the challenge process only if it
has engaged in this meet and confer process first or establishes that the Designating Party is
unwilling to participate in the meet and confer process in a timely manner.
6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

intervention, the Designating Party shall file and serve a motion to retain confidentiality within 21
days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and
confer process will not resolve their dispute, whichever is earlier. Each such motion must be
accompanied by a competent declaration affirming that the movant has complied with the meet and
confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make
such a motion including the required declaration within 21 days (or 14 days, if applicable) shall

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automatically waive the confidentiality designation for each challenged designation. In addition, the
Challenging Party may file a motion challenging a confidentiality designation at any time if there is
good cause for doing so, including a challenge to the designation of a deposition transcript or any
portions thereof. Any motion brought pursuant to this provision must be accompanied by a
competent declaration affirming that the movant has complied with the meet and confer
requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the Designating
Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.
Unless the Designating Party has waived the confidentiality designation by failing to file a motion to
retain confidentiality as described above, all parties shall continue to afford the material in question
the level of protection to which it is entitled under the Producing Party’s designation until the court
rules on the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

produced by another Party or by a Non-Party in connection with this case only for prosecuting,
defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
the categories of persons and under the conditions described in this Order. When the litigation has
been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons authorized under
this Order.
7.2

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

the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed
the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock jurors,
and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is reasonably
necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
deposition testimony or exhibits to depositions that reveal Protected Material must be separately
bound by the court reporter and may not be disclosed to anyone except as permitted under this
Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information.
8.

LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

If a Party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
must:
(a) promptly notify in writing the Designating Party. Such notification shall include a copy
of the subpoena or court order;

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(b) promptly notify 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 subject to this
Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the subpoena
or court order shall not produce any information designated in this action as “CONFIDENTIAL”
before a determination by the court from which the subpoena or order issued, unless the Party has
obtained the Designating Party’s permission. The Designating Party shall bear the burden and
expense of seeking protection in that court of its confidential material – 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.
9.

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

LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party in this
action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
connection with this litigation 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.
(b) In the event that a Party is required, by a valid discovery request, to produce a NonParty’s confidential information in its possession, and the Party is subject to an agreement with the
Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that some or
all of the information requested is subject to a confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in
this litigation, the relevant discovery request(s), and a reasonably specific description of the
information requested; and

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(3) make the information requested available for inspection by the Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this court within 14 days
of receiving the notice and accompanying information, the Receiving Party may produce the NonParty’s confidential information responsive to the discovery request. If the Non-Party timely seeks a
protective order, the Receiving Party shall not produce any information in its possession or control
that is subject to the confidentiality agreement with the Non-Party before a determination by the
court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of
seeking protection in this court of its Protected Material.
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
inform the person or persons to whom unauthorized disclosures were made of all the terms of this
Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to
Be Bound” that is attached hereto as Exhibit A.
11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

MATERIAL

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

MISCELLANEOUS

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12.1

its modification by the court in the future.

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12.2

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

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

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

12.3

Filing Protected Material. Without written permission from the Designating Party or a

court order secured after appropriate notice to all interested persons, a Party may not file in the
public record in this action any Protected Material. A Party that seeks to file under seal any Protected
Material must comply with Civil Local Rule 141. Protected Material may only be filed under seal
pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant
to Civil Local Rule 141, a sealing order will issue only upon a request establishing that the Protected
Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection under
the law.
13.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each

Receiving Party must return all Protected Material to the Producing Party or destroy such material.
As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must submit a written
certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material
that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected
Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant
and expert work product, even if such materials contain Protected Material. Any such archival copies
that contain or constitute Protected Material remain subject to this Protective Order as set forth in
Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: August 28, 2017

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Respectfully submitted,
FOX ROTHSCHILD LLP

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By: /s/ Andrew W. Russell
DAVID F. FAUSTMAN
TYREEN G. TORNER
ANDREW W. RUSSELL
Attorneys for Defendant

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DATED: August 28, 2017

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Respectfully submitted,
CHANT & COMPANY
A Professional Law Corporation
By: /s/ Chant Yedalian (per confirming email 8/23/17)
CHANT YEDALIAN
Attorneys for Plaintiff

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: August 28, 2017.

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EXHIBIT A
I, _______________________ [print or type full name], of __________________ [print or

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type full address], declare under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protective Order that was issued in United States District Court in the case of Joan Pasini,

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et al. v. Party City Corporation, Case No. 2:17-cv-00962-WBS-EFB. I agree to comply with and be

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bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of contempt. I

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

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Stipulated Protective Order to any person or entity except in strict compliance with the provisions of

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this Order.
I further agree to submit to the jurisdiction of the United States District Court For The

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Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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

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__________________ as my California agent for service of process in connection with this action or

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any proceedings related to enforcement of this Stipulated Protective Order.

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Date:_____________________

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City and State where sworn and signed: _____________________

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Printed Name: ________________________

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Signature: ________________________

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STIPULATION FOR PROTECTIVE ORDER AND [PROPOSED]
ORDER
ACTIVE\50673088.v1-8/24/17

Case No. 2:17-cv-00962-WBS-EFB__