John Utne v. Home Depot U.S.A., Inc.

Filing 32

STIPULATION AND ORDER Regarding Confidential Discovery Material. Signed by Judge Richard Seeborg on 5/3/17. (cl, COURT STAFF) (Filed on 5/3/2017)

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DONNA M. MEZIAS (SBN 111902)
LIZ K. BERTKO (SBN 268128)
[e-mail]
[e-mail]
AKIN GUMP STRAUSS HAUER & FELD LLP
580 California Street, Suite 1500
San Francisco, CA 94104
Telephone: [phone]
Facsimile: 415-765-9501
Attorneys for Defendant
HOME DEPOT U.S.A., INC.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

11 JOHN UTNE, on behalf of himself,
all others similarly situated,
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Plaintiff,
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vs.
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HOME DEPOT U.S.A., INC., a
15 Delaware corporation; and DOES 150, inclusive,
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Defendants.
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Case No. 16-cv-01854-RS
[Assigned to Hon. Richard Seeborg]
STIPULATION REGARDING
CONFIDENTIAL DISCOVERY
MATERIAL AND [PROPOSED]
ORDER

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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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

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warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does not

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confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information under

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seal; Civil Local Rule 79-5 and General Order 62 set 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

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court to file material under seal.

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2.

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DEFINITIONS
2.1

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

information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how

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it is generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c), as well as confidential, private or personal

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information regarding current or former Home Depot employees, confidential

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commercial or proprietary information, trade secrets, or any other confidential protected

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information under state or federal law.

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2.3

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

Counsel (as well as their support staff).

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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2.4

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

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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

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the medium or manner in which it is generated, stored, or maintained (including, among

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other things, testimony, transcripts, and tangible things), that are produced or generated

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in disclosures or responses to discovery in this matter.

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2.6

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

pertinent to the litigation who has been retained by a Party or its counsel to serve as an
expert witness or as a consultant in this action.
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House Counsel: attorneys who are employees of a party to this action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.8

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

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this action but are retained to represent or advise a party to this action and have

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

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appeared on behalf of that party.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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demonstrations, and organizing, storing, or retrieving data in any form or medium) and

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their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL.”

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

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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

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material. However, the protections conferred by

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this Stipulation and Order do not cover the following information: (a) any information

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that is in the public domain at the time of disclosure to a Receiving Party or becomes

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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

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public record through trial or otherwise; and (b) any information known to the

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Receiving Party prior to the disclosure or obtained by the Receiving Party after the

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disclosure from a source who obtained the information lawfully and under no obligation

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of confidentiality to the Designating Party. Any use of Protected Material at trial shall

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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

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imposed by this Order shall remain in effect until a Designating Party agrees otherwise

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in writing or a court order otherwise directs. Final disposition shall be deemed to be the

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later of (1) dismissal of all claims and defenses in this action, with or without prejudice;

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and (2) final judgment herein after the completion and exhaustion of all appeals,

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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rehearings, remands, trials, or reviews of this action, including the time limits for filing

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any motions or applications for extension of time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
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Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for protection

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only those parts of material, documents, items, or oral or written communications that

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qualify – so that other portions of the material, documents, items, or communications

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for which protection is not warranted are not swept unjustifiably within the ambit of this

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Order. If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2

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

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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

for information in documentary form (e.g., paper or electronic documents,

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but excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix the legend “CONFIDENTIAL” to each page that contains

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protected material.

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A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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copied and produced, the Producing Party must determine which documents qualify for

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protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix the “CONFIDENTIAL” legend to each page that contains

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Protected Material.

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(b)

for testimony given in deposition, that the Designating Party identify

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portions of the testimony as to which protection is sought within 30 days of receipt of

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the transcript. Only those portions of the testimony that are appropriately designated for

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protection shall be covered by the provisions of this Stipulated Protective Order. For

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testimony in other pretrial or trial proceedings, parties shall meet and confer and

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propose reasonable procedures for use of Protected Material.
Transcripts containing Protected Material shall have an obvious legend on the

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title page that the transcript contains Protected Material, and the title page shall be

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followed by a list of all pages (including line numbers as appropriate) that have been

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designated as Protected Material and the level of protection being asserted by the

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Designating Party. The Designating Party shall inform the court reporter of these

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requirements. Any transcript that is prepared before the expiration of a 30 day period

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for designation shall be treated during that period as if it had been designated

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“CONFIDENTIAL” in its entirety unless otherwise agreed. After the expiration of that

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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

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other tangible items, that the Producing Party affix in a prominent place on the exterior

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of the container or containers in which the information or item is stored the legend

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“CONFIDENTIAL.”

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material. Upon

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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timely correction of a designation, the Receiving Party must make reasonable efforts to

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assure that the material is treated in accordance with 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

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designation of confidentiality at any time. Unless a prompt challenge to a Designating

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Party’s confidentiality designation is necessary to avoid foreseeable, substantial

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unfairness, unnecessary economic burdens, or a significant disruption or delay of the

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litigation, a Party does not waive its right to challenge a confidentiality designation by

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electing not to mount a challenge promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging and

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describing the basis for each challenge. To avoid ambiguity as to whether a challenge

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has been made, the written notice must recite that the challenge to confidentiality is

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being made in accordance with this specific paragraph of the Protective Order. The

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parties shall attempt to resolve each challenge in good faith and must begin the process

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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

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Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to

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review the designated material, to reconsider the circumstances, and, if no change in

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designation is offered, to explain the basis for the chosen designation. A Challenging

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Party may proceed to the next stage of the challenge process only if it has engaged in

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this meet and confer process first or establishes that the Designating Party is unwilling

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to participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Designating Party shall file and serve a motion to retain

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confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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and General Order 62, if applicable) within 21 days of the initial notice of challenge or

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within 14 days of the parties agreeing that the meet and confer process will not resolve

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their dispute, whichever is earlier. Each such motion must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph. Failure by the Designating Party to

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make such a motion including the required declaration within 21 days (or 14 days, if

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applicable) shall automatically waive the confidentiality designation for each challenged

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designation. In addition, the Challenging Party may file a motion challenging a

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confidentiality designation at any time if there is good cause for doing so, including a

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challenge to the designation of a deposition transcript or any portions thereof. Any

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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

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requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

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to harass or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived the

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confidentiality designation by failing to file a motion to retain confidentiality as

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described above, all parties shall continue to afford the material in question the level of

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protection to which it is entitled under the Producing Party’s designation until the court

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rules on the challenge, and any review process of the court’s ruling has been exhausted.

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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

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

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only for prosecuting, defending, or attempting to settle this litigation. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions

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described in this Order. When the litigation has been terminated, a Receiving Party

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must comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

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

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may 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

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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

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(b)

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

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the Receiving Party to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c)

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

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff, professional jury or trial consultants,

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mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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(f)

during their depositions, witnesses in the action to whom disclosure

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is reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by

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the court. Pages of transcribed deposition testimony or exhibits to depositions that

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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reveal Protected Material must be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Stipulated Protective Order.
(g)

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

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

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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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

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“CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall include a

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copy of this Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.
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” before a determination by the court from which the subpoena or

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order issued, unless the Party has obtained the Designating Party’s permission. The

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Designating Party shall bear the burden and expense of seeking protection in that court

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of its confidential material – and nothing in these provisions should be construed as

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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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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
(a)

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

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Non-Party in this action and designated as “CONFIDENTIAL.” Such information

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produced by Non-Parties in connection with this litigation is protected by the remedies

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and relief provided by this Order. Nothing in these provisions should be construed as

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prohibiting a Non-Party from seeking additional protections.

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(b)

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

produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s confidential

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information, then the Party shall:

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1.

promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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2.

promptly provide the Non-Party with a copy of the

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Stipulated Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and

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make the information requested available for inspection by

the Non-Party.
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If the Non-Party fails to object or seek a protective order from this

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court within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information responsive to

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the discovery request. If the Non-Party timely seeks a protective order, the Receiving

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Party shall not produce any information in its possession or control that is subject to the

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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

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seeking protection in this court of its Protected Material.

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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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

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

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the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d) request

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such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

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that is attached hereto as Exhibit A.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without prior

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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

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information covered by the attorney-client privilege or work product protection, the

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Parties may incorporate their agreement in the Stipulated Protective Order submitted to

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the court.

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12.

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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.

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

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Stipulated Protective Order no Party waives any right it otherwise would have to object

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to disclosing or producing any information or item on any ground not addressed in this

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any of the material covered by this Stipulated Protective

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Order. Nothing in this Stipulated Protective Order will be deemed to be a limit on or

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waiver of the attorney-client privilege, work product privilege, or any other relevant

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privilege.

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12.3 Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record in this action any Protected Material.

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A Party that seeks to file under seal any Protected Material must comply with Civil

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Local Rule 79-5 and General Order 62. Protected Material may only be filed under seal

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pursuant to a court order authorizing the sealing of the specific Protected Material at

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issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a sealing order will

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issue only upon a request establishing that the Protected Material at issue is privileged,

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protectable as a trade secret, or otherwise entitled to protection under the law. If a

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Receiving Party’s request to file Protected Material under seal pursuant to Civil Local

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Rule 79-5(d) and General Order 62 is denied by the court, then the Receiving Party may

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file the information in the public record pursuant to Civil Local Rule 79-5(e) unless

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otherwise instructed by the court.

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12.4 Additional Parties to Lawsuit. If other Parties are added to this

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action, no Protected Material previously exchanged, produced, or used herein will be

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disclosed to such other Parties or their Counsel except upon their agreeing to be bound

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by the provisions of this Stipulated Protective Order.

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13.

FINAL DISPOSITION. Within 60 days after the final disposition of this

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action, as defined in paragraph 4, each Receiving Party must return all Protected

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Material to the Producing Party or destroy such material. As used in this subdivision,

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“all Protected Material” includes all copies, abstracts, compilations, summaries, and any

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other format reproducing or capturing any of the Protected Material. Whether the

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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Protected Material is returned or destroyed, the Receiving Party must submit a written

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certification to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the 60-day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2) affirms

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that the Receiving Party has not retained any copies, abstracts, compilations, summaries

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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

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material.

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Any such archival copies that contain or constitute Protected Material remain subject to

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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: May 1, 2017

/s/ Thomas Segal
THOMAS SEGAL
SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Telephone: [phone]
Facsimile: [phone]

Dated: May 1, 2017

./s/ Liz K. Bertko
LIZ K. BERTKO (SBN 268128)
AKIN GUMP STRAUSS HAUER & FELD LLP
580 California Street, Suite 1500
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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5/3/17
Dated: _________________

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Judge Richard Seeborg
United States District Judge

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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____________________________ [print or type full address], declare under

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penalty of perjury that I have read in its entirety and understand the Stipulated

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Protective Order that was issued by the United States District Court for the

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Northern District of California on [date] in the case of Utne v. Home Depot USA,

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Inc., Civil Action No. 16-cv-01854-RS. I agree to comply with and to be bound by

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

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that failure to so comply could expose me to sanctions and punishment in the

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nature of contempt. I solemnly promise that I will not disclose in any manner any

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information or item that is subject to this Stipulated Protective Order to any person

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or 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

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District Court for the Northern District of California for the purpose of enforcing

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the terms of this Stipulated Protective Order, even if such enforcement proceedings

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occur after termination of this action.

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS

I hereby appoint _________________________ [print or type full

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name] of ___________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Stipulated Protective

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Order.

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Dated: _______________________, 20____

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City and Date where sworn and signed: _________________________

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Printed name: __________________________
[printed name]

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Signature: ______________________________
[signature]

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STIPULATION RE CONFIDENTIAL DISCOVERY MATERIAL, CASE NO. 16-CV-01854-RS