Dodson et al v. Tempur-Sealy International, Inc. et al

Filing 68

STIPULATED PROTECTIVE ORDER re 66 Stipulation, filed by Alan Kaufman, Toni Kibbee, Diane Kucharski, Ericka Anderson, Tina White, Robbie Simmons, Kurt Anderson, Barbara Warren, Julie Davidoff, Jerry Kucharski, Debra Evangelista, Melody Todd, Joseph Saline, Tracey Palmer, Sara Stone, Keith Hawkins, Thomas Comiskey, Brian Stone, Patricia Kaufman, Johnny Martinez, Alvin Todd. Signed by Judge Jon S. Tigar on September 16, 2014. (wsn, COURT STAFF) (Filed on 9/16/2014)

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Allen M. Stewart (SBN 262594)
[e-mail]
Steve Baughman Jensen (Pro Hac Vice)
[e-mail]
Stephanie Brooks Sherman (Pro Hac Vice)
[e-mail]
ALLEN STEWART, P.C.
325 N. St. Paul Street, Suite 4000
Dallas, Texas 75201
Telephone: [phone]
Facsimile: [phone]
Michael McShane (SBN 127944)
[e-mail]
Jonas P. Mann (SBN 263314)
[e-mail]
AUDET & PARTNERS, LLP
221 Main Street, Suite 1460
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]

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Gary K. Shipman (Pro Hac Vice)
[e-mail]
William G. Wright (Pro Hac Vice)
[e-mail]
Angelique Adams (Pro Hac Vice)
[e-mail]
SHIPMAN & WRIGHT, LLP
575 Military Cutoff Rd., Suite 106
Wilmington, NC 28405
Telephone: [phone]
Facsimile: [phone]

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John Simon (Pro Hac Vice)
[e-mail]
Ryan Keane (Pro Hac Vice)
[e-mail]
SIMON LAW FIRM, P.C.
800 Market Street
St. Louis, MO 63101
Telephone: [phone]
Facsimile: [phone]
Attorney for Alvin Todd, et al., and the Proposed Class
(Additional Plaintiffs Set Forth Below on Signature Page)

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STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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ALVIN TODD and MELODY TODD, et
al., individually and on behalf of all
others similarly situated

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Plaintiffs,

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vs.

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TEMPUR SEALY INTERNATIONAL,
INC., formerly known as TEMPURPEDIC INTERNATIONAL, INC. and
TEMPUR-PEDIC NORTH AMERICA,
LLC,
Defendants.

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Case No. 3:13-cv-04984-JST

STIPULATED PROTECTIVE ORDER

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1.

PURPOSES AND LIMITATIONS

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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

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles. The parties further acknowledge, as

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set forth in Section 12.4, below, that this Stipulated Protective Order does not entitle them to file

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confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

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followed and the standards that will be applied when a party seeks permission from the court to

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file material under seal.
STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

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2.

DEFINITIONS

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2.1

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

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information or 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
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of Civil Procedure 26(c).
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2.3

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

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well as their support staff).
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2.4
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Designated House Counsel: House Counsel who seek access to “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.]

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2.5
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Designating Party: a Party or Non-Party that designates information or items that

it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.

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2.6

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

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medium or manner in which it is generated, stored, or maintained (including, among other things,
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testimony, transcripts, and tangible things), that are produced or generated in disclosures or
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responses to discovery in this matter.
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2.7

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

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the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or
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as a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s

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competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party
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or of a Party’s competitor.

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2.8
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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another

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Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
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less restrictive means.
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2.9

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

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

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entity not named as a Party to this action.

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action on behalf of that party or are affiliated with a law firm which has appeared on behalf of
that party.
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2.13

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2.14

organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.
2.15

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

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Professional Vendors: persons or entities that provide litigation support services

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

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

Material in this action.

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

consultants, retained experts, and Outside Counsel of Record (and their support staffs).

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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

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

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

Producing Party.

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3.
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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

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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.

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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 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

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or Non-Party that designates information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards.

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To the extent it is practical to do so, the Designating Party must designate for protection only

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those parts of material, documents, items, or oral or written communications that qualify – so

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that other portions of the material, documents, items, or communications for which protection is

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not warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on 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

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for protection do not qualify for protection at all or do not qualify for the level of protection

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initially asserted, that Designating Party must promptly notify all other parties that it is
STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

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withdrawing the mistaken designation.
5.2

(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:

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

(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” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” 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) and must specify, for
each portion, the level of protection being asserted.
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 “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” 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 appropriate legend (“CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) 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) and must specify, for each portion, the level of protection being
asserted.
(b) for testimony given in deposition or in other pretrial or trial proceedings, that

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the Designating Party identify on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony and specify the level of protection being asserted. When it is
impractical to identify separately each portion of testimony that is entitled to protection and it
appears that substantial portions of the testimony may qualify for protection, the Designating
Party may invoke on the record (before the deposition, hearing, or other proceeding is
concluded) a right to have up to 21 days to identify the specific portions of the testimony as to
which protection is sought and to specify the level of protection being asserted. Only those
portions of the testimony that are appropriately designated for protection within the 21 days shall
be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating
Party may specify, at the deposition or up to 21 days afterwards if that period is properly
invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
Parties shall give the other parties notice if they reasonably expect a deposition, hearing
or other proceeding to include Protected Material so that the other parties can ensure that only
authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
Transcripts containing Protected Material shall have an obvious legend on the title page
that the transcript contains Protected Material, and the title page shall be followed by a list of all
pages (including line numbers as appropriate) that have been designated as Protected Material
and the level of protection being asserted by the Designating Party. The Designating Party shall
inform the court reporter of these requirements. Any transcript that is prepared before the
expiration of a 21-day period for designation shall be treated during that period as if it had been
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
otherwise agreed. After the expiration of that period, the transcript shall be treated only as
actually designated.

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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”
or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. 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) and specify the level of protection being asserted.

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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. 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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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

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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 under
Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) 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 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.
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.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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or produced by another Party or by a Non-Party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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When the litigation has been terminated, a Receiving Party must comply with the provisions of

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section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and

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in a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any 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

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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

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Bound” that is attached hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party 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);
(c)

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any party insurers responsible for payment of claims under any policy

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required to be disclosed in this action pursuant to Rule 26(a)(1)(iv), Federal Rules of Civil

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Procedure and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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(d)

Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(e) the court and its personnel;

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(f) court reporters and their staff, professional jury or trial consultants, mock
STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

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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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(g)

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; and

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(h)

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7.3

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Designating Party, a Receiving Party may disclose any information or item designated
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 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
information for this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A;
(b) Designated House Counsel of the Receiving Party (1) who has no involvement
in competitive decision-making, (2) to whom disclosure is reasonably necessary for this
litigation, (3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
and (4) as to whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed;

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items. Unless otherwise ordered by the court or permitted in writing by the

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the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information.

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during their depositions, witnesses in the action to whom disclosure is

(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary
for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been
followed];
(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, 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); and
(f) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY” Information or Items to Designated House Counsel or Experts.
(a)(1) Unless otherwise ordered by the court or agreed to in writing by the
Designating Party, a Party that seeks to disclose to Designated House Counsel any information
or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that
certifies that the Receiving Party has done a reasonable investigation and determined that the
Designated House Counsel’s current and reasonably foreseeable future primary job duties and
responsibilities do not and will not involve any competitive decision-making with regard to
Designating Party.
(a)(2) Unless otherwise ordered by the court or agreed to in writing by the
Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” pursuant to paragraph 7.3(c) first must complete a reasonable investigation of the
Expert and determined (1) that the Expert’s current employer(s) are not competitors of the
Receiving Party, (2) that the Expert is not a past employee of a Party or a Party’s competitor and
at the time of retention not anticipated to become an employee of a Party or a competitor; and (3)
that the Expert, and all persons working with or for the Expert that will receive the Protected
Material, have executed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
In addition, the Receiving Party shall maintain a log of all persons to whom the
Protected Material is provided and shall provide such log to the Designating Party at the
conclusion of the Litigation if so ordered upon good cause showing by the Designating Party.

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The log shall be kept with sufficient detail to allow the Designating Party to determine whether
the Receiving Party has complied with the requirements of this Order.

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8.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this action as “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall

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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

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in the other litigation that some or all of the material covered by the subpoena or order is subject

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to this Protective Order. Such notification shall include a copy of this Stipulated Protective

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Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by

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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

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a

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determination by the court from which the subpoena or order issued, unless the Party has

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obtained the Designating Party’s permission. The Designating Party shall bear the burden and

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expense of seeking protection in that court of its confidential material – and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive 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
(a)

The terms of this Order are applicable to information produced by a Non-

Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” Such information produced by Non-Parties in connection with

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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.

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(b)

produce a Non-Party’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:

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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 NonParty;

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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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In the event that a Party is required, by a valid discovery request, to

(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 Non-Party’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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10.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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

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STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

Page 14

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

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3

11.

INADVERTENT PRODUCTION
PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

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communication or information covered by the attorney-client privilege or work product

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protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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12.

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OF

PRIVILEGED

OR

OTHERWISE

MISCELLANEOUS
12.1

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

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

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Order no Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly,

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no Party waives any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.

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12.3

Filing Protected Material. Without written permission from the Designating Party

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or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be

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filed under seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a

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request establishing that the Protected Material at issue is privileged, protectable as a trade

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secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file
STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

Page 15

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Protected Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, then
the Receiving Party may file the Protected Material in the public record pursuant to Civil Local
Rule 79-5(e)(2) unless otherwise instructed by the court.

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12.4. Right to Modification and Further Protections. This Order shall not prevent any
party from applying to the Court for relief therefrom, or from applying to the Court for further or
additional protective orders, or from agreeing among themselves to modification of this Order,
subject to the approval of the Court.

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13.
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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, 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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STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

Page 16

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: September 11, 2014

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BY: /s/ Daniel J. Gerber___________
Daniel J. Gerber
RUMBERGER, KIRK & CALDWELL, P.A.
Douglas B. Brown
300 South Orange Avenue
Orlando, FL 32802
[phone]
[phone] (fax)
CALL & JENSEN
A Professional Corporation
Mark L. Eisenhut
Matthew R. Orr
Aaron L. Renfro
610 Newport Center Drive, Suite 700
Newport Beach, CA 92660
[phone]
[phone] (fax)
Attorneys for Defendants Tempur Sealy
International, Inc., formerly known as TempurPedic International, Inc. and Tempur-Pedic North
America, LLC

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STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

Page 17

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Dated: September 11, 2014

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BY: /s/ Angelique Adams__________
SHIPMAN & WRIGHT
Gary K. Shipman
William G. Wright
Angelique Adams
575 Military Cutoff Road, Suite 106
Wilmington, North Carolina 28405
910/762-1990
910/762-6752 (fax)
Allen M. Stewart
ALLEN STEWART, P.C.
Allen M. Stewart (262594)
Steve Baughman Jensen
Stephanie Brooks Sherman
325 N. St. Paul Street, Suite 4000
Dallas, Texas 75201
214/965-8700
214/965-8701 (fax)
SIMON LAW FIRM, P.C.
John Simon
Ryan Keane
800 Market St.
St. Louis, MO 63101
314/241-2929
314/241-2029 (fax)

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Attorneys for Plaintiffs Alvin Todd, Melody Todd,
Barbara Warren, Robbie Simmons, Tina White,
Keith Hawkins, Thomas Comiskey, Alan
Kaufman, Patricia Kaufman, Debra Evangelista,
Johnny Martinez, Julie Davidoff, Tracey Palmer,
Joseph Saline, Toni Kibbee, Brian Stone, Sarah
Stone, Kurt Anderson, Ericka Anderson, Jerry
Kucharski, Diane Kucharski and the Proposed
Class

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STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

Page 18

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6

RT

8

NO

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______________________________________
ERED
O ORD
JON S
IT ISS. TIGAR
United States District Judge

n S.
J u d ge J o

ER

Ti ga r

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A

H

9

R NIA

5

FO

4

UNIT
ED

S

Dated: September 16, 2014

S DISTRICT
TE
C
TA

RT
U
O

3

PURSUANT TO STIPULATION, IT IS SO ORDERED.

LI

2

N

D IS T IC T
R

OF

C

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STIPULATED PROTECTIVE ORDER – 3:13-cv-04984-JST

Page 19

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

_____________________________

[print

or

type

full

name],

_________________ [print or type full address], declare under penalty of perjury that I have
read in its entirety and understand the Stipulated Protective Order that was issued by the United
States District Court for the Northern District of California on [date] in the case of ___________
[insert formal name of the case and the number and initials assigned to it by the court]. I
agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I
understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner
any information or item that is subject to this Stipulated Protective Order to any person or entity
except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for
the Northern District of California for the purpose of enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and telephone
number] as my California agent for service of process in connection with this action or any
proceedings related to enforcement of this Stipulated Protective Order.

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Date: _________________________________
City and State where sworn and signed: _________________________________

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of

Printed name: ______________________________
[printed name]
Signature: __________________________________
[signature]

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