Charles v. Best Buy Co., Inc.

Filing 25

STIPULATED PROTECTIVE ORDER. Signed by Judge Maxine M. Chesney on January 30, 2013. (mmclc1, COURT STAFF) (Filed on 1/30/2013)

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1 2 3 4 5 6 7 8 SEYFARTH SHAW LLP Michael J. Burns (SBN 172614) Eden Anderson (SBN 233464) 560 Mission Street, 31st Floor San Francisco, California 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendant BEST BUY STORES, L.P. (erroneously sued as "BEST BUY CO., INC.") 10 LAW OFFICES OF SHARON COHEN Sharon Cohen (SBN 209608) 1385 Ridgewood Drive, Suite 110 Chico, California 95973 Telephone: (530) 345-6343 11 Attorney for Plaintiff 9 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 15 Case No. C 12-02934 MMC SHAUN CHARLES, 16 STIPULATED PROTECTIVE ORDER Plaintiff, 17 v. 18 19 20 BEST BUY CO., INC., and DOES 1 to 50, inclusive, Defendants. 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 1. 2 Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation would be warranted. 5 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 7 all disclosures or responses to discovery and that the protection it affords extends only to the 8 limited information or items that are entitled under the applicable legal principles to treatment as 9 confidential. The parties further acknowledge, as set forth in Section 10 below that this PURPOSE AND LIMITATIONS 10 Stipulated Protective Order creates no entitlement to file confidential information under seal; 11 Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards 12 that will be applied when a party seeks permission from the court to file material under seal. 13 2. 2.1 14 15 DEFINITIONS Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff). 2.2 16 Disclosure or Discovery Material: all items or information, regardless of 17 the medium or manner generated, stored, or maintained (including, among other things, 18 testimony, transcripts, or tangible things) that are produced or generated in disclosures or 19 responses to discovery in this matter. 2.3 20 “CONFIDENTIAL” Information or Items: information (regardless of how 21 generated, stored or maintained) or tangible things that qualify for protection under standards 22 developed under FRCP 26(c). 2.4 23 24 from a Producing Party. 2.5 25 26 27 28 Receiving Party: a Party that receives Disclosure or Discovery Material Producing Party: a Party that produces Disclosure or Discovery Material 2.6 Designating Party: a Party that designates information or items that it in this action. 2 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2 3 2.7 designated as “CONFIDENTIAL.” 4 5 Protected Material: any Disclosure or Discovery Material that is 2.8 Outside Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action. 6 2.9 House Counsel: attorneys who are employees of a Party. 7 2.10 Counsel (without qualifier): Outside Counsel and House Counsel (as well 8 as their support staffs). 9 2.11 Expert: a person with specialized knowledge or experience in a matter 10 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 11 witness or as a consultant in this action and who is not a past or a current employee of a Party or 12 of a competitor of a Party’s and who, at the time of retention, is not anticipated to become an 13 employee of a Party or a competitor of a Party’s. This definition includes a professional jury or 14 trial consultant retained in connection with this litigation. 2.12 15 Professional Vendors: persons or entities that provide litigation support 16 services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; 17 organizing, storing, retrieving data in any form or medium; etc.) and their employees and 18 subcontractors. 19 3. 20 The protections conferred by this Stipulation and Order cover not only Protected Material SCOPE 21 (as defined above), but also any information copied or extracted therefrom, as well as all copies, 22 excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by 23 parties or counsel to or in court or in other settings that might reveal Protected Material. 24 4. 25 Even after the termination of this litigation, the confidentiality obligations imposed by this DURATION 26 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 27 otherwise directs. 28 3 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 5. DESIGNATING PROTECTED MATERIAL 5.1 2 Exercise of Restraint and Care in Designating Material for Protection. 3 Each Party that designates information or items for protection under this Order must take care to 4 limit any such designation to specific material that qualifies under the appropriate standards. A 5 Designating Party must take care to designate for protection only those parts of material, 6 documents, items, or oral or written communications that qualify — so that other portions of the 7 material, documents, items, or communications for which protection is not warranted are not 8 swept unjustifiably within the ambit of this Order. 9 Mass, indiscriminate, or routinized designations are prohibited. Designations 10 that are shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to 11 unnecessarily encumber or retard the case development process, or to impose unnecessary 12 expenses and burdens on other parties), expose the Designating Party to sanctions. 13 If it comes to a Party’s attention that information or items that it designated for 14 protection do not qualify for protection at all, or do not qualify for the level of protection initially 15 asserted, that Party must promptly notify all other parties that it is withdrawing the mistaken 16 designation. 17 5.2 Manner and Timing of Designations. Except as otherwise provided in this 18 Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, 19 material that qualifies for protection under this Order must be clearly so designated before the 20 material is disclosed or produced. 21 22 Designation in conformity with this Order requires: (a) for information in documentary form (apart from transcripts of 23 depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 24 “CONFIDENTIAL” at the top of each page that contains protected material. If only a portion or 25 portions of the material on a page qualifies for protection, the Producing Party also must clearly 26 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 27 28 A Party that makes original documents or materials available for inspection 4 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 need not designate them for protection until after the inspecting Party has indicated which 2 material it would like copied and produced. After the inspecting Party has identified the 3 documents it wants copied and produced, the Producing Party must determine which documents, 4 or portions thereof, qualify for protection under this Order. If only a portion or portions of the 5 material on a page qualifies for protection, the Producing Party also must clearly identify the 6 protected portion(s) (e.g., by making appropriate markings in the margins). 7 (b) for testimony given in deposition or in other pretrial or trial 8 proceedings, that the Party offering or sponsoring the testimony identify on the record, before the 9 close of the deposition, hearing, or other proceeding, all protected testimony. When it is 10 impractical to identify separately each portion of testimony that is entitled to protection, and when 11 it appears that substantial portions of the testimony may qualify for protection, the Party that 12 sponsors, offers, or gives the testimony may invoke on the record (before the deposition or 13 proceeding is concluded) a right to have up to 20 days to identify the specific portions of the 14 testimony as to which protection is sought. Only those portions of the testimony that are 15 appropriately designated for protection within the 20 days shall be covered by the provisions of 16 this Stipulated Protective Order. Transcript pages containing Protected Material must be separately bound 17 18 by the court reporter, who must affix to the top of each such page the legend “CONFIDENTIAL.” 19 (c) for information produced in some form other than documentary, and for 20 any other tangible items, that the Producing Party affix in a prominent place on the exterior of the 21 container or containers in which the information or item is stored the legend “CONFIDENTIAL.” 22 If only portions of the information or item warrant protection, the Producing Party, to the extent 23 practicable, shall identify the protected portions. 24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 25 failure to designate qualified information or items as “CONFIDENTIAL” does not, standing 26 alone, waive the Designating Party’s right to secure protection under this Order for such material. 27 If material is appropriately designated as “CONFIDENTIAL” after the material was initially 28 5 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 produced, the Receiving Party, on timely notification of the designation, must make reasonable 2 efforts to assure that the material is treated in accordance with the provisions of this Order. 3 4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party’s 5 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 6 economic burdens, or a later significant disruption or delay of the litigation, a Party does not 7 waive its right to challenge a confidentiality designation by electing not to mount a challenge 8 promptly after the original designation is disclosed. 9 6.2 Meet and Confer. A Party that elects to initiate a challenge to a 10 Designating Party’s confidentiality designation must do so in good faith and must begin the 11 process by conferring directly (in voice to voice dialogue; other forms of communication are not 12 sufficient) with counsel for the Designating Party. In conferring, the challenging Party must 13 explain the basis for its belief that the confidentiality designation was not proper and must give 14 the Designating Party an opportunity to review the designated material, to reconsider the 15 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 16 designation. A challenging Party may proceed to the next stage of the challenge process only if it 17 has engaged in this meet and confer process first. 18 6.3 Judicial Intervention. A Party that elects to press a challenge to a 19 confidentiality designation after considering the justification offered by the Designating Party 20 may file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 21 79-5, if applicable) that identifies the challenged material and sets forth in detail the basis for the 22 challenge. Each such motion must be accompanied by a competent declaration that affirms that 23 the movant has complied with the meet and confer requirements imposed in the preceding 24 paragraph and that sets forth with specificity the justification for the confidentiality designation 25 that was given by the Designating Party in the meet and confer dialogue. 26 27 28 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 afford the 6 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 material in question the level of protection to which it is entitled under the Producing Party’s 2 designation. 3 7. ACCESS TO AND USE OF PROTECTED MATERIAL 4 7.1 Basic Principles. A Receiving Party may use Protected Material that is 5 disclosed or produced by another Party in connection with this case only for prosecuting, 6 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 7 the categories of persons and under the conditions described in this Order. When the litigation has 8 been terminated, a Receiving Party must comply with the provisions of section 11, below (FINAL 9 DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 10 11 location and in a secure manner that ensures that access is limited to the persons authorized under 12 this Order. 13 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 14 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 15 disclose any information or item designated CONFIDENTIAL only to: 16 (a) the Receiving Party’s Outside Counsel of record in this action, as well 17 as employees of said Counsel to whom it is reasonably necessary to disclose the information for 18 this litigation and who have signed the “Agreement to Be Bound by Protective Order” that is 19 attached hereto as Exhibit A; 20 (b) the officers, directors, and employees (including House Counsel) of the 21 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 22 signed the “Agreement to Be Bound by Protective Order” (Exhibit A); 23 (c) experts (as defined in this Order) of the Receiving Party to whom 24 disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be 25 Bound by Protective Order” (Exhibit A); 26 (d) the Court and its personnel; 27 (e) court reporters, their staffs, and professional vendors to whom 28 7 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be 2 Bound by Protective Order” (Exhibit A); 3 (f) during their depositions, witnesses in the action to whom disclosure is 4 reasonably necessary and who have signed the “Agreement to Be Bound by Protective Order” 5 (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal 6 Protected Material must be separately bound by the court reporter and may not be disclosed to 7 anyone except as permitted under this Stipulated Protective Order. (g) the author of the document or the original source of the information. 8 9 10 11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. If a Receiving Party is served with a subpoena or an order issued in other litigation that 12 would compel disclosure of any information or items designated in this action as 13 “CONFIDENTIAL”, the Receiving Party must so notify the Designating Party, in writing (by fax, 14 if possible) immediately and in no event more than three court days after receiving the subpoena 15 or order. Such notification must include a copy of the subpoena or court order. 16 The Receiving Party also must immediately inform in writing the Party who caused the 17 subpoena or order to issue in the other litigation that some or all the material covered by the 18 subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must 19 deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that 20 caused the subpoena or order to issue. 21 The purpose of imposing these duties is to alert the interested parties to the existence of 22 this Protective Order and to afford the Designating Party in this case an opportunity to try to 23 protect its confidentiality interests in the court from which the subpoena or order issued. The 24 Designating Party shall bear the burdens and the expenses of seeking protection in that court of its 25 confidential material — and nothing in these provisions should be construed as authorizing or 26 encouraging a Receiving Party in this action to disobey a lawful directive from another court. 27 28 8 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 9. 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 3 Material to any person or in any circumstance not authorized under this Stipulated Protective 4 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 5 unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) 6 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 7 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 8 Be Bound” that is attached hereto as Exhibit A. 9 10. FILING PROTECTED MATERIAL. WITHOUT WRITTEN PERMISSION 10 FROM THE DESIGNATING PARTY OR A COURT ORDER SECURED AFTER 11 APPROPRIATE NOTICE TO ALL INTERESTED PERSONS, A PARTY MAY NOT FILE IN 12 THE PUBLIC RECORD IN THIS ACTION ANY PROTECTED MATERIAL. A PARTY 13 THAT SEEKS TO FILE UNDER SEAL ANY PROTECTED MATERIAL MUST COMPLY 14 WITH CIVIL LOCAL RULE 79-5. 15 11. FINAL DISPOSITION. UNLESS OTHERWISE ORDERED OR AGREED IN 16 WRITING BY THE PRODUCING PARTY, WITHIN SIXTY DAYS AFTER THE FINAL 17 TERMINATION OF THIS ACTION, EACH RECEIVING PARTY MUST RETURN ALL 18 PROTECTED MATERIAL TO THE PRODUCING PARTY. AS USED IN THIS 19 SUBDIVISION, “ALL PROTECTED MATERIAL” INCLUDES ALL COPIES, ABSTRACTS, 20 COMPILATIONS, SUMMARIES OR ANY OTHER FORM OF REPRODUCING OR 21 CAPTURING ANY OF THE PROTECTED MATERIAL, WITH PERMISSION IN WRITING 22 FROM THE DESIGNATING PARTY, THE RECEIVING PARTY MAY DESTROY SOME 23 OR ALL OF THE PROTECTED MATERIAL INSTEAD OF RETURNING IT. WHETHER 24 THE PROTECTED MATERIAL IS RETURNED OR DESTROYED, THE RECEIVING 25 PARTY MUST SUBMIT A WRITTEN CERTIFICATION TO THE PRODUCING PARTY 26 (AND, IF NOT THE SAME PERSON OR ENTITY, TO THE DESIGNATING PARTY) BY 27 THE SIXTY DAY DEADLINE THAT IDENTIFIES (BY CATEGORY, WHERE 28 9 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 APPROPRIATE) ALL THE PROTECTED MATERIAL THAT WAS RETURNED OR 2 DESTROYED AND THAT AFFIRMS THAT THE RECEIVING PARTY HAS NOT 3 RETAINED ANY COPIES, ABSTRACTS, COMPILATIONS, SUMMARIES OR OTHER 4 FORMS OF REPRODUCING OR CAPTURING ANY OF THE PROTECTED MATERIAL. 5 NOTWITHSTANDING THIS PROVISION, COUNSEL ARE ENTITLED TO RETAIN AN 6 ARCHIVAL COPY OF ALL PLEADINGS, MOTION PAPERS, TRANSCRIPTS, LEGAL 7 MEMORANDA, CORRESPONDENCE OR ATTORNEY WORK PRODUCT, EVEN IF SUCH 8 MATERIALS CONTAIN PROTECTED MATERIAL. ANY SUCH ARCHIVAL COPIES 9 THAT CONTAIN OR CONSTITUTE PROTECTED MATERIAL REMAIN SUBJECT TO 10 THIS PROTECTIVE ORDER AS SET FORTH IN SECTION 4 (DURATION), ABOVE. 11 12. 12.1 12 13 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 14 Right to Assert Other Objections. By stipulating to the entry of this 15 Protective Order no Party waives any right it otherwise would have to object to disclosing or 16 producing any information or item on any ground not addressed in this Stipulated Protective 17 Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of 18 the material covered by this Protective Order. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 10 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 DATED: January 23, 2013 3 Respectfully submitted, SEYFARTH SHAW LLP 4 5 By: /s/ Eden Anderson Michael J. Burns Eden Anderson Attorneys for Defendant BEST BUY STORES, L.P. (erroneously sued as "BEST BUY CO., INC.") 6 7 8 LAW OFFICES OF SHARON COHEN Sharon Cohen (SBN 209608) 1385 Ridgewood Drive, Suite 110 Chico, California 95973 Telephone: (530) 345-6343 9 10 11 Attorney for Plaintiff 12 13 DATED: January 23, 2013 LAW OFFICES OF SHARON COHEN 14 15 By:/s/ Sharon Cohen Sharon Cohen Attorney for Plaintiff 16 17 18 19 PURSUANT TO STIPULATION, IT IS SO ORDERED. 20 21 DATED: January 30, 2013 _________________________________ United States District Judge 22 23 24 25 26 27 28 11 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, [print or type full name], of [print or type full address], declare under penalty of 4 perjury that I have read in its entirety and understand the Stipulated Protective Order that was 5 issued by the United States District Court for the Northern District of California on [date] in the 6 case of Shaun Charles v. Best Buy Co., Inc., et al., Case No. C 12-02934 MMC. I agree to comply 7 with and to be bound by all the terms of this Stipulated Protective Order and I understand and 8 acknowledge that failure to so comply could expose me to sanctions and punishment in the nature 9 of contempt. I solemnly promise that I will not disclose in any manner any information or item 10 that is subject to this Stipulated Protective Order to any person or entity except in strict 11 compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for 13 the Northern District of California for the purpose of enforcing the terms of this Stipulated 14 Protective Order, even if such enforcement proceedings occur after termination of this action. 15 I hereby appoint [print or type full name] of [print or type full address and 16 telephone number] as my California agent for service of process in connection with this action or 17 any proceedings related to enforcement of this Stipulated Protective Order. 18 19 20 21 Date: 22 City and State where sworn and signed: 23 Printed name: [printed name] 24 25 26 Signature: [signature] 14751987v.1 27 28 12 STIPULATED PROTECTIVE ORDER CASE NO. C 12-02934 MMC

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