Laura Redfern v. Home Depot U.S.A. Inc.
Filing
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STIPULATION AND ORDER re 25 PROPOSED STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION filed by Home Depot U.S.A. Inc. Docket (27) TERMINATED. Signed by Judge Edward M. Chen on 10/6/17. (bpfS, COURT STAFF) (Filed on 10/6/2017)
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DOLAN LAW FIRM, PC.
Christopher B. Dolan (SBN 165358)
Emile A. Davis (SBN 208394)
Mari Bandoma Callado (SBN 288320)
1438 Market Street
San Francisco, CA 94102
Tel: (415) 421-2800
Fax: (415) 421-2830
Attorneys for Plaintiff
LAURA REDFERN
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United States District Court
Northern District of California
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LAFAYETTE & KUMAGAI LLP
GARY T. LAFAYETTE (State Bar No. 088666)
JASMINE L. ANDERSON (State Bar No. 252973)
1300 Clay Street, Suite 810
Oakland, California 94612
Telephone: (415) 357-4600
Facsimile: (415) 357-4605
Attorneys for Defendant
HOME DEPOT U.S.A., INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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LAURA REDFERN an individual,
Plaintiff(s),
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vs.
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HOME DEPOT U.S.A., INC., a Delaware
Corporation, and DOES 1 through 25,
inclusive,
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Defendant(s).
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) Case Number: 3:17-cv-01944
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) STIPULATED PROTECTIVE ORDER FOR
) STANDARD LITIGATION
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1.
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of
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confidential, proprietary, or private information for which special protection from public disclosure
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and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
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the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
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Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures
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or responses to discovery and that the protection it affords from public disclosure and use extends
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only to the limited information or items that are entitled to confidential treatment under the
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applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that
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this Stipulated Protective Order does not entitle them to file confidential information under seal;
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Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be
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applied when a party seeks permission from the court to file material under seal.
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2.
DEFINITIONS
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2.1
Challenging Party: a Party or Non-Party that challenges the designation of information or
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items under this Order.
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2.2
“CONFIDENTIAL” Information or Items: information (regardless of how it is
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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
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Civil Procedure 26(c). “CONFIDENTIAL” information shall include, but is not limited to, (a) any
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personnel or personal information for employees of defendant Home Depot U.S.A., Inc. (“Home
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Depot”), its parent or subsidiaries, including any personnel database identifying such employees, (b)
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any document or information designated as “CONFIDENTIAL” in accordance with Paragraph 5 of
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this Order, and (c) any aggregation of “CONFIDENTIAL” information.
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2.3
Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well
as their support staff).
2.4
Designating Party: a Party or Non-Party that designates information or items that it
produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5
Disclosure or Discovery Material: all items or information, regardless of the medium
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or manner in which it is generated, stored, or maintained (including, among other things, testimony,
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transcripts, and tangible things), that are produced or generated in disclosures or responses to
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discovery in this matter.
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2.6
Expert: a person with specialized knowledge or experience in a matter pertinent to
the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
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consultant in this action.
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Counsel does not include Outside Counsel of Record or any other outside counsel.
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House Counsel: attorneys who are employees of a party to this action. House
Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a party to this action
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but are retained to represent or advise a party to this action and have appeared in this action on
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behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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Party: any party to this action, including all of its officers, directors, employees,
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
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Professional Vendors: persons or entities that provide litigation support services
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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
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storing, or retrieving data in any form or medium) and their employees and subcontractors.
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Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from a
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Producing Party.
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3.
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SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material (as
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defined above), but also (1) any information copied or extracted from Protected Material; (2) all
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copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
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However, the protections conferred by this Stipulation and Order do not cover the following
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information: (a) any information that is in the public domain at the time of disclosure to a Receiving
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Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
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publication not involving a violation of this Order, including becoming part of the public record
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through trial or otherwise; and (b) any information known to the Receiving Party prior to the
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disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
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information lawfully and under no obligation of confidentiality to the Designating Party. Any use of
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Protected Material at trial shall be governed by a separate agreement or order.
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4.
DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by this
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Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
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otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
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defenses in this action, with or without prejudice; and (2) final judgment herein after the completion
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and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the
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time limits for filing any motions or applications for extension of time pursuant to applicable law.
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5.
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DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each Party or
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Non-Party that designates information or items for protection under this Order must take care to
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limit any such designation to specific material that qualifies under the appropriate standards. The
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Designating Party must designate for protection only those parts of material, documents, items, or
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oral or written communications that qualify – so that other portions of the material, documents,
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items, or communications for which protection is not warranted are not swept unjustifiably within
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the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
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to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
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encumber or retard the case development process or to impose unnecessary expenses and burdens on
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other parties) expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it designated for
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protection do not qualify for protection, that Designating Party must promptly notify all other Parties
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that it is withdrawing the mistaken designation.
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5.2
Manner and Timing of Designations. Except as otherwise provided in this Order
(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
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designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but
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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
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affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion
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or portions of the material on a page qualifies for protection, the Producing Party also must clearly
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identify the protected portion(s) (e.g., by making appropriate markings in the margins).
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A Party or Non-Party that makes original documents or materials available for inspection need not
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designate them for protection until after the inspecting Party has indicated which material it would
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like copied and produced. During the inspection and before the designation, all of the material made
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available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
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identified the documents it wants copied and produced, the Producing Party must determine which
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documents, or portions thereof, qualify for protection under this Order. Then, before producing the
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specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page
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that contains Protected Material. If only a portion or portions of the material on a page qualifies for
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protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making
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appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
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Designating Party identify on the record, before the close of the deposition, hearing, or other
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proceeding, all protected testimony.
(c) for information produced in some form other than documentary and for any other
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tangible items, that the Producing Party affix in a prominent place on the exterior of the container or
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containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a
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portion or portions of the information or item warrant protection, the Producing Party, to the extent
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practicable, shall identify the protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the Designating Party’s
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right to secure protection under this Order for such material. Upon timely correction of a
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designation, the Receiving Party must make reasonable efforts to assure that the material is treated in
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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 designation of
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confidentiality within 30 days of production of the material designated as “CONFIDENTIAL.”
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Failure to challenge the designation of confidentiality within 30 days constitutes a waiver of the right
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to challenge a confidentiality designation.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution process
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by providing written notice of each designation it is challenging and describing the basis for each
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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
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recite that the challenge to confidentiality is being made in accordance with this specific paragraph
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of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must
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begin the process by conferring directly (in voice to voice dialogue; other forms of communication
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are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging
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Party must explain the basis for its belief that the confidentiality designation was not proper and
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must give the Designating Party an opportunity to review the designated material, to reconsider the
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circumstances, and, if no change in designation is offered, to explain the basis for the chosen
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designation. A Challenging Party may proceed to the next stage of the challenge process only if it
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has engaged in this meet and confer process first or establishes that the Designating Party is
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unwilling 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 court
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intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil
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Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the
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initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process
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will not resolve 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 make such a
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motion including the required declaration within 21 days (or 14 days, if applicable) shall
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automatically waive the confidentiality designation for each challenged designation. In addition,
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the Challenging Party may file a motion challenging a confidentiality designation at within 30 days
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of production of the material designated as “CONFIDENTIAL,” if there is good cause for doing so,
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including a 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 declaration
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affirming that the movant has complied with the meet and confer requirements imposed by the
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preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on the Designating
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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
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unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.
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Unless the Designating Party has waived the confidentiality designation by failing to file a motion to
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retain confidentiality as described above, all parties shall continue to afford the material in question
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the level of protection to which it is entitled under the Producing Party’s designation until the court
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rules on the challenge.
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7.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
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the categories of persons and under the conditions described in this Order. When the litigation has
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been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
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DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Order.
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by
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the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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information or item designated “CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees
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of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for
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this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is
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attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the Receiving
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Party to whom disclosure is reasonably necessary for this litigation and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement
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to Be Bound” (Exhibit A);
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(d) the court and its personnel;
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(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and
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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably
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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
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deposition testimony or exhibits to depositions that reveal Protected Material must be separately
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bound by the court reporter and may not be disclosed to anyone except as permitted under this
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Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian or
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other person who otherwise possessed or knew the information.
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8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
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LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation that compels
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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
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must:
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(a) promptly notify in writing the Designating Party. Such notification shall include a
copy of the subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or order to issue in the
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other litigation that some or all of the material covered by the subpoena or order is subject to this
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Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
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Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena
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or court order shall not produce any information designated in this action as “CONFIDENTIAL”
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before a 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
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action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
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connection with this litigation is protected by the remedies and relief provided by this Order.
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Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional
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protections.
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(b) In the event that a Party is required, by a valid discovery request, to produce a Non-
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Party’s confidential information in its possession, and the Party is subject to an agreement with the
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Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
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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 Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in
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this litigation, the relevant discovery request(s), and a reasonably specific description of the
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information requested; and
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(3) make the information requested available for inspection by the Non-Party.
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(c) If the Non-Party fails to object or seek a protective order from this court within 14
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days of receiving the notice and accompanying information, the Receiving Party may produce the
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Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
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seeks a protective order, the Receiving Party shall not produce any information in its possession or
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control that is subject to the confidentiality agreement with the Non-Party before a determination by
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the court. 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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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
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Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
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the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
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inform the person or persons to whom unauthorized disclosures were made of all the terms of this
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Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to
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Be Bound” that is attached hereto as Exhibit A.
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11.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
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MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain inadvertently produced
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material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties
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are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
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modify whatever procedure may be established in an e-discovery order that provides for production
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without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
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parties reach an agreement on the effect of disclosure of a communication or information covered by
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the attorney-client privilege or work product protection, the parties may incorporate their agreement
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in the stipulated protective order submitted to the court.
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12.
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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
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Right to Assert Other Objections. By stipulating to the entry of this Protective Order
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no Party waives any right it otherwise would have to object to disclosing or producing any
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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
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Party waives any right to object on any ground to use in evidence of any of the material covered by
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this Protective Order.
12.3
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Filing Protected Material. Without written permission from the Designating Party or a
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court order secured after appropriate notice to all interested persons, a Party may not file in the
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public record in this action any Protected Material. A Party that seeks to file under seal any Protected
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Material must comply with Civil Local Rule 79-5. 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 issue. Pursuant
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to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the
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Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to
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protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant
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to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information
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in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by 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
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Receiving Party must return all Protected Material to the Producing Party or destroy such material.
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As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
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summaries, and any other format reproducing or capturing any of the Protected Material. Whether
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the 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 Designating Party)
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by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material
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that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies,
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abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected
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Material. 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 consultant
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and expert work product, even if such materials contain Protected Material. Any such archival copies
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that contain or constitute Protected Material remain subject to this Protective Order as set forth in
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Section 4 (DURATION).
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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LAFAYETTE & KUMAGAI LLP
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DATED: September 25, 2017____________/s/ Jasmine L. Anderson
JASMINE L. ANDERSON
Attorney for Defendant
HOME DEPOT U.S.A, INC.
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DOLAN LAW FIRM, P.C.
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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UNIT
ED
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S DISTRICT
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TA
RT
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S
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DATED:
______
ERED
10/6/2017
______________________________Hon. Edward ChenS SO ORD
IT I
United States District Judge
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J
ER
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A
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. Chen
ward M
udge Ed
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R NIA
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/s/ Emile A. Davis
EMILE A. DAVIS
Attorney for Plaintiff
LAURA REDFERN
FO
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DATED: September 25, 2017
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D IS T IC T O
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _____________________________ [print or type full name], of _________________ [print or
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type full address], declare under penalty of perjury that I have read in its entirety and understand the
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Stipulated Protective Order that was issued by the United States District Court for the Northern
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District of California on [date] in the case of ___________ [insert formal name of the case and the
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number and initials assigned to it by the court]. I agree to comply with and to be bound by all the
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terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply
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could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I
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will not disclose in any manner any information or item that is subject to this Stipulated Protective
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Order to any person 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 District Court for the Northern
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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even
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if such enforcement proceedings occur after termination of this action.
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I hereby appoint __________________________ [print or type full name] of
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_______________________________________ [print or type full address and telephone number] as
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my California agent for service of process in connection with this action or any proceedings related
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to enforcement of this Stipulated Protective Order.
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Date: ______________________________________
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City and State where sworn and signed: _________________________________
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Printed name: _______________________________
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Signature: __________________________________
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