Rough v. Costco Wholesale Corporation
Filing
38
STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Deborah Barnes on 11/17/2020. (Huang, H)
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SEYFARTH SHAW LLP
David D. Kadue (SBN 113578)
dkadue@seyfarth.com
David D. Jacobson (SBN 143369)
djacobson@seyfarth.com
Jinouth D. Vasquez Santos (SBN 299056)
jvasquezsantos@seyfarth.com
2029 Century Park East, Suite 3500
Los Angeles, California 90067-3021
Telephone: (310) 277-7200
Facsimile: (310) 201-5219
Attorneys for Defendant
COSTCO WHOLESALE CORPORATION
GRAHAMHOLLIS APC
Graham S.P. Hollis (SBN 120577)
ghollis@grahamhollis.com
Nathan Reese (SBN 283150)
nreese@grahamhollis.com
3555 Fifth Avenue, Suite 200
San Diego, California 92103
Telephone: 619.692.0800
Facsimile: 619.692.0822
Attorneys for Plaintiff MEGAN ROUGH
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MEGAN ROUGH, individually and on behalf
of all similarly situated current and former
employees of DEFENDANTS in the State of
California,
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Plaintiff,
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v.
COSTCO WHOLESALE CORPORATION, a
Delaware Corporation, and DOES 1-50,
inclusive,
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Defendant.
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65395729v.1
No. 2:19-cv-01340-MCE-DB
STIPULATED PROTECTIVE ORDER
FOR STANDARD LITIGATION
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1.
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of
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confidential, proprietary, or private information for which special protection from public disclosure
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and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
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the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
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Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures
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or responses to discovery and that the protection it affords from public disclosure and use extends
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only to the limited information or items that are entitled to confidential treatment under the
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applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that
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this Stipulated Protective Order does not entitle them to file confidential information under seal;
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Civil Local Rule 141 sets forth the procedures that must be followed and the standards that will be
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applied when a party seeks permission from the court to file material under seal.
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2.
DEFINITIONS
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2.1
Challenging Party: a Party or Non-Party that challenges the designation of information or
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items under this Order.
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2.2
“CONFIDENTIAL” Information or Items: information (regardless of how it is
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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
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Civil Procedure 26(c).
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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
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or manner in which it is generated, stored, or maintained (including, among other things, testimony,
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transcripts, and tangible things), that are produced or generated in disclosures or responses to
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discovery in this matter.
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2.6
Expert: a person with specialized knowledge or experience in a matter pertinent to
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the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
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consultant in this action.
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Counsel does not include Outside Counsel of Record or any other outside counsel.
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House Counsel: attorneys who are employees of a party to this action. House
Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a party to this action
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but are retained to represent or advise a party to this action and have appeared in this action on
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behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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Party: any party to this action, including all of its officers, directors, employees,
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
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Professional Vendors: persons or entities that provide litigation support services
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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
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storing, or retrieving data in any form or medium) and their employees and subcontractors.
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Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from a
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Producing Party.
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3.
SCOPE
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The protections conferred by this Stipulation and Order cover not only Protected Material (as
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defined above), but also (1) any information copied or extracted from Protected Material; (2) all
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copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
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However, the protections conferred by this Stipulation and Order do not cover the following
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information: (a) any information that is in the public domain at the time of disclosure to a Receiving
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Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
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publication not involving a violation of this Order, including becoming part of the public record
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through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure
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or obtained by the Receiving Party after the disclosure from a source who obtained the information
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lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected
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Material at trial shall be governed by a separate agreement or order.
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4.
DURATION
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Even after final disposition of this litigation, the confidentiality obligations imposed by this
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Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
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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
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and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time
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limits for filing any motions or applications for extension of time pursuant to applicable law.
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5.
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DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each Party or
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Non-Party that designates information or items for protection under this Order must take care to limit
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any such designation to specific material that qualifies under the appropriate standards. The
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Designating Party must designate for protection only those parts of material, documents, items, or oral
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or written communications that qualify – so that other portions of the material, documents, items, or
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communications for which protection is not warranted are not swept unjustifiably within the ambit of
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this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
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to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
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encumber or retard the case development process or to impose unnecessary expenses and burdens on
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other parties) expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it designated for protection
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do not qualify for protection, that Designating Party must promptly notify all other Parties that it is
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withdrawing the mistaken designation.
5.2
Manner and Timing of Designations. Except as otherwise provided in this Order (see,
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e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or
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Discovery Material that qualifies for protection under this Order must be clearly so designated before
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the material is disclosed or produced.
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Designation in conformity with this Order requires:
(a)
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for information in documentary form (e.g., paper or electronic documents, but
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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
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affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion
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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
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designate them for protection until after the inspecting Party has indicated which material it would
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like copied and produced. During the inspection and before the designation, all of the material made
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available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified
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the documents it wants copied and produced, the Producing Party must determine which documents,
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or portions thereof, qualify for protection under this Order. Then, before producing the specified
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documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that contains
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Protected Material. If only a portion or portions of the material on a page qualifies for protection, the
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Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
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markings in the margins).
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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
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Designating Party identify on the record, before the close of the deposition, hearing, or other
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proceeding, all protected testimony.
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(c) for information produced in some form other than documentary and for any other
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tangible items, that the Producing Party affix in a prominent place on the exterior of the container or
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containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a portion
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or portions of the information or item warrant protection, the Producing Party, to the extent practicable,
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shall identify the protected portion(s).
5.3
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Inadvertent Failures to Designate.
If timely corrected, an inadvertent failure to
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designate qualified information or items does not, standing alone, waive the Designating Party’s right
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to secure protection under this Order for such material. Upon timely correction of a designation, the
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Receiving Party must make reasonable efforts to assure that the material is treated in accordance with
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the provisions of this Order.
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6.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a designation of
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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,
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or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a
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confidentiality designation by electing not to mount a challenge promptly after the original designation
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is disclosed.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution process
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by providing written notice of each designation it is challenging and describing the basis for each
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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite
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that the challenge to confidentiality is being made in accordance with this specific paragraph of the
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Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the
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process by conferring directly (in voice to voice dialogue; other forms of communication are not
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sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party must
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explain the basis for its belief that the confidentiality designation was not proper and must give the
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Designating Party an opportunity to review the designated material, to reconsider the circumstances,
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and, if no change in designation is offered, to explain the basis for the chosen designation. A
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Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this
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meet and confer process first or establishes that the Designating Party is unwilling to participate in the
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meet and confer process in a timely manner.
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6.3
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Judicial Intervention.
If the Parties cannot resolve a challenge without court
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intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil
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Local Rule 230 within 21 days of the initial notice of challenge or within 14 days of the parties agreeing
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that the meet and confer process will not resolve their dispute, whichever is earlier. Each such motion
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must be accompanied by a competent declaration affirming that the movant has complied with the
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meet and confer requirements imposed in the preceding paragraph. Failure by the Designating Party
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to make such a motion including the required declaration within 21 days (or 14 days, if applicable)
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shall automatically waive the confidentiality designation for each challenged designation. In addition,
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the Challenging Party may file a motion challenging a confidentiality designation at any time if there
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is good cause for doing so, including a challenge to the designation of a deposition transcript or any
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portions thereof. Any motion brought pursuant to this provision must be accompanied by a competent
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declaration affirming that the movant has complied with the meet and confer requirements imposed
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by the preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on the Designating Party.
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Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary
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expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the
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Designating Party has waived the confidentiality designation by failing to file a motion to retain
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confidentiality as described above, all parties shall continue to afford the material in question the level
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of protection to which it is entitled under the Producing Party’s designation until the court rules on the
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challenge.
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7.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the
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categories of persons and under the conditions described in this Order. When the litigation has been
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terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
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DISPOSITION).
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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
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the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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information or item designated “CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees
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of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for
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this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is
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attached hereto as Exhibit A;
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(b) the officers, directors, and employees of the Receiving Party to whom disclosure is
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reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to
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Be Bound” (Exhibit A);
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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to
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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
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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
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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
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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
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deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound
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by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated
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Protective Order.
(g) the author or recipient of a document containing the information or a custodian or other
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person who otherwise possessed or knew the information.
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8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
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LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation that compels
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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
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must:
(a) promptly notify in writing the Designating Party. Such notification shall include a copy
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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
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other litigation that some or all of the material covered by the subpoena or order is subject to this
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Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
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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
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court order shall not produce any information designated in this action as “CONFIDENTIAL” before
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a determination by the court from which the subpoena or order issued, unless the Party has obtained
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the Designating Party’s permission. The Designating Party shall bear the burden and expense of
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seeking protection in that court of its confidential material – and nothing in these provisions should be
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construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive
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from another court.
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9.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
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(a) The terms of this Order are applicable to information produced by a Non-Party in this
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action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
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connection with this litigation is protected by the remedies and relief provided by this Order. Nothing
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in these provisions should be construed as prohibiting a Non-Party from seeking additional
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protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a Non-
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Party’s confidential information in its possession, and the Party is subject to an agreement with the
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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
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of the information requested is subject to a confidentiality agreement with a Non-Party;
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(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in
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this litigation, the relevant discovery request(s), and a reasonably specific description of the
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information requested; and
(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
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of receiving the notice and accompanying information, the Receiving Party may produce the Non-
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Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a
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protective order, the Receiving Party shall not produce any information in its possession or control
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that is subject to the confidentiality agreement with the Non-Party before a determination by the court.
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Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking
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protection in this court of its Protected Material.
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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
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Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
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the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
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inform the person or persons to whom unauthorized disclosures were made of all the terms of this
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Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be
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Bound” that is attached hereto as Exhibit A.
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11.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
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MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain inadvertently produced
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material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties
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are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
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modify whatever procedure may be established in an e-discovery order that provides for production
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without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
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parties reach an agreement on the effect of disclosure of a communication or information covered by
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the attorney-client privilege or work product protection, the parties may incorporate their agreement
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in the stipulated protective order submitted to the court.
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12.1
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MISCELLANEOUS
Right to Further Relief. Nothing in this Order abridges the right of any person to seek
its modification by the court in the future.
12.2
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Right to Assert Other Objections. By stipulating to the entry of this Protective Order
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no Party waives any right it otherwise would have to object to disclosing or producing any information
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or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives
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any right to object on any ground to use in evidence of any of the material covered by this Protective
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Order.
12.3
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Filing Protected Material. Without written permission from the Designating Party or a
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court order secured after appropriate notice to all interested persons, a Party may not file in the public
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record in this action any Protected Material. A Party that seeks to file under seal any Protected Material
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must comply with Civil Local Rule 141. Protected Material may only be filed under seal pursuant to
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a court order authorizing the sealing of the specific Protected Material at issue. If a Receiving Party's
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request to file Protected Material under seal pursuant to Civil Local Rule 141 is denied by the court,
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then the Receiving Party may file the information in the public record unless otherwise instructed by
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the court.
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13.
FINAL DISPOSITION
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Within 60 days after the final disposition of this action, as defined in paragraph 4, each
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Receiving Party must return all Protected Material to the Producing Party or destroy such material. As
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used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
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summaries, and any other format reproducing or capturing any of the Protected Material. Whether the
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Protected Material is returned or destroyed, the Receiving Party must submit a written certification to
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the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day
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deadline that (1) identifies (by category, where appropriate) all the Protected Material that was
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returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,
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compilations, summaries or any other format reproducing or capturing any of the Protected Material.
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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion
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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and
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trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if
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such materials contain Protected Material. Any such archival copies that contain or constitute
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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: October 19, 2020
/s/ Nathan Reese
Graham Hollis
Vilmarie Cordero
Nathan Reese
Attorneys for Plaintiff
MEGHAN ROUGH
DATED: October 19, 2020
/s/ Jinouth Vasquez Santos
David D. Kadue
David D. Jacobson
Jinouth D. Vasquez Santos
Attorneys for Defendant
Costco Wholesale Corporation.
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ORDER
Pursuant to the parties’ stipulation, IT IS SO ORDERED.
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IT IS FURTHER ORDERED THAT:
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1. Requests to seal documents shall be made by motion before the same judge who will
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decide the matter related to that request to seal.
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2.
The designation of documents (including transcripts of testimony) as confidential
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pursuant to this order does not automatically entitle the parties to file such a document with the court
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under seal. Parties are advised that any request to seal documents in this district is governed by
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Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a written
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order of the court after a specific request to seal has been made. L.R. 141(a). However, a mere
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request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires that
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“[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, the
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requested duration, the identity, by name or category, of persons to be permitted access to the
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document, and all relevant information.” L.R. 141(b).
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3. A request to seal material must normally meet the high threshold of showing that
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“compelling reasons” support secrecy; however, where the material is, at most, “tangentially
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related” to the merits of a case, the request to seal may be granted on a showing of “good cause.”
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Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana
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v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006).
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4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of
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certain documents, at any court hearing or trial – such determinations will only be made by the court
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at the hearing or trial, or upon an appropriate motion.
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5. With respect to motions regarding any disputes concerning this protective order which
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the parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule
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251. Absent a showing of good cause, the court will not hear discovery disputes on an ex parte basis
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or on shortened time.
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6. The parties may not modify the terms of this Protective Order without the court’s
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approval. If the parties agree to a potential modification, they shall submit a stipulation and
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proposed order for the court’s consideration.
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7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement
of the terms of this Protective Order after the action is terminated.
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8. Any provision in the parties’ stipulation that is in conflict with anything in this order is
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hereby DISAPPROVED.
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DATED: November 17, 2020
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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _____________________________ [print or type full name], of _________________ [print or type
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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 by the United States District Court for the Northern District
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of California on [date] in the case of Megan Rough v. Costco Wholesale Corporation, Case No. 2:19-
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cv-01340-MCE-DB. I agree to comply with and to be bound by all the terms of this Stipulated
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Protective Order and I understand and acknowledge that failure to so comply could expose me to
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sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any
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manner any information or item that is subject to this Stipulated Protective Order to any person or
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entity except in strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the Northern District
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of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such
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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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_______________________________________ [print or type full address and telephone number] as
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my California agent for service of process in connection with this action or any proceedings related
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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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