Laura Redfern v. Home Depot U.S.A. Inc.

Filing 28

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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1 2 3 4 5 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 6 7 8 9 10 United States District Court Northern District of California 11 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. 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 16 LAURA REDFERN an individual, Plaintiff(s), 17 18 vs. 19 20 21 HOME DEPOT U.S.A., INC., a Delaware Corporation, and DOES 1 through 25, inclusive, 22 Defendant(s). ) ) Case Number: 3:17-cv-01944 ) ) STIPULATED PROTECTIVE ORDER FOR ) STANDARD LITIGATION ) ) ) ) ) ) ) ) ) 23 24 25 26 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 27 confidential, proprietary, or private information for which special protection from public disclosure 28 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 1 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 2 Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures 3 or responses to discovery and that the protection it affords from public disclosure and use extends 4 only to the limited information or items that are entitled to confidential treatment under the 5 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that 6 this Stipulated Protective Order does not entitle them to file confidential information under seal; 7 Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be 8 applied when a party seeks permission from the court to file material under seal. 9 2. DEFINITIONS 10 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or 11 items under this Order. 12 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 13 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 14 Civil Procedure 26(c). “CONFIDENTIAL” information shall include, but is not limited to, (a) any 15 personnel or personal information for employees of defendant Home Depot U.S.A., Inc. (“Home 16 Depot”), its parent or subsidiaries, including any personnel database identifying such employees, (b) 17 any document or information designated as “CONFIDENTIAL” in accordance with Paragraph 5 of 18 this Order, and (c) any aggregation of “CONFIDENTIAL” information. 19 20 21 22 23 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 24 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 25 transcripts, and tangible things), that are produced or generated in disclosures or responses to 26 discovery in this matter. 27 28 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 2 1 consultant in this action. 2.7 2 3 Counsel does not include Outside Counsel of Record or any other outside counsel. 2.8 4 5 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. 2.9 6 Outside Counsel of Record: attorneys who are not employees of a party to this action 7 but are retained to represent or advise a party to this action and have appeared in this action on 8 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 2.10 9 10 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.11 11 12 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. 2.12 13 Professional Vendors: persons or entities that provide litigation support services 14 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 15 storing, or retrieving data in any form or medium) and their employees and subcontractors. 2.13 16 17 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.14 18 Receiving Party: a Party that receives Disclosure or Discovery Material from a 19 Producing Party. 20 3. 21 SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as 22 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 23 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 24 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 25 However, the protections conferred by this Stipulation and Order do not cover the following 26 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 27 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 28 publication not involving a violation of this Order, including becoming part of the public record 3 1 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 2 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 3 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 4 Protected Material at trial shall be governed by a separate agreement or order. 5 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 6 7 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 8 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 9 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 10 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 11 time limits for filing any motions or applications for extension of time pursuant to applicable law. 12 5. 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 14 Non-Party that designates information or items for protection under this Order must take care to 15 limit any such designation to specific material that qualifies under the appropriate standards. The 16 Designating Party must designate for protection only those parts of material, documents, items, or 17 oral or written communications that qualify – so that other portions of the material, documents, 18 items, or communications for which protection is not warranted are not swept unjustifiably within 19 the ambit of this Order. 20 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 21 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 22 encumber or retard the case development process or to impose unnecessary expenses and burdens on 23 other parties) expose the Designating Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that it designated for 25 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 26 that it is withdrawing the mistaken designation. 27 28 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, 4 1 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 2 designated before the material is disclosed or produced. 3 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but 4 5 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 6 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 7 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 8 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 9 A Party or Non-Party that makes original documents or materials available for inspection need not 10 designate them for protection until after the inspecting Party has indicated which material it would 11 like copied and produced. During the inspection and before the designation, all of the material made 12 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 13 identified the documents it wants copied and produced, the Producing Party must determine which 14 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 15 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 16 that contains Protected Material. If only a portion or portions of the material on a page qualifies for 17 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 18 appropriate markings in the margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 19 20 Designating Party identify on the record, before the close of the deposition, hearing, or other 21 proceeding, all protected testimony. (c) for information produced in some form other than documentary and for any other 22 23 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 24 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 25 portion or portions of the information or item warrant protection, the Producing Party, to the extent 26 practicable, shall identify the protected portion(s). 27 28 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 5 1 right to secure protection under this Order for such material. Upon timely correction of a 2 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 3 accordance with the provisions of this Order. 4 6. 5 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 6 confidentiality within 30 days of production of the material designated as “CONFIDENTIAL.” 7 Failure to challenge the designation of confidentiality within 30 days constitutes a waiver of the right 8 to challenge a confidentiality designation. 9 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 10 by providing written notice of each designation it is challenging and describing the basis for each 11 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 12 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 13 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 14 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 15 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 16 Party must explain the basis for its belief that the confidentiality designation was not proper and 17 must give the Designating Party an opportunity to review the designated material, to reconsider the 18 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 19 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 20 has engaged in this meet and confer process first or establishes that the Designating Party is 21 unwilling to participate in the meet and confer process in a timely manner. 22 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 23 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 24 Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the 25 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process 26 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 27 competent declaration affirming that the movant has complied with the meet and confer 28 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a 6 1 motion including the required declaration within 21 days (or 14 days, if applicable) shall 2 automatically waive the confidentiality designation for each challenged designation. In addition, 3 the Challenging Party may file a motion challenging a confidentiality designation at within 30 days 4 of production of the material designated as “CONFIDENTIAL,” if there is good cause for doing so, 5 including a challenge to the designation of a deposition transcript or any portions thereof. Any 6 motion brought pursuant to this provision must be accompanied by a competent declaration 7 affirming that the movant has complied with the meet and confer requirements imposed by the 8 preceding paragraph. 9 The burden of persuasion in any such challenge proceeding shall be on the Designating 10 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 11 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 12 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 13 retain confidentiality as described above, all parties shall continue to afford the material in question 14 the level of protection to which it is entitled under the Producing Party’s designation until the court 15 rules on the challenge. 16 7. 17 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 18 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 19 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 20 the categories of persons and under the conditions described in this Order. When the litigation has 21 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 22 DISPOSITION). 23 24 25 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 26 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 27 information or item designated “CONFIDENTIAL” only to: 28 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 7 1 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 2 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 3 attached hereto as Exhibit A; (b) the officers, directors, and employees (including House Counsel) of the Receiving 4 5 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 6 “Acknowledgment and Agreement to Be Bound” (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 7 8 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 9 to Be Bound” (Exhibit A); 10 (d) the court and its personnel; 11 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 12 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is reasonably 14 15 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 16 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 17 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 18 bound by the court reporter and may not be disclosed to anyone except as permitted under this 19 Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or 20 21 other person who otherwise possessed or knew the information. 22 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 23 LITIGATION 24 If a Party is served with a subpoena or a court order issued in other litigation that compels 25 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 26 must: 27 28 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 1 2 other litigation that some or all of the material covered by the subpoena or order is subject to this 3 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 4 5 Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena 6 7 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 8 before a determination by the court from which the subpoena or order issued, unless the Party has 9 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 10 expense of seeking protection in that court of its confidential material – and nothing in these 11 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 12 disobey a lawful directive from another court. 13 9. 14 15 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 16 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 17 connection with this litigation is protected by the remedies and relief provided by this Order. 18 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 19 protections. 20 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 21 Party’s confidential information in its possession, and the Party is subject to an agreement with the 22 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 23 24 25 (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 26 this litigation, the relevant discovery request(s), and a reasonably specific description of the 27 information requested; and 28 (3) make the information requested available for inspection by the Non-Party. 9 1 (c) If the Non-Party fails to object or seek a protective order from this court within 14 2 days of receiving the notice and accompanying information, the Receiving Party may produce the 3 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 4 seeks a protective order, the Receiving Party shall not produce any information in its possession or 5 control that is subject to the confidentiality agreement with the Non-Party before a determination by 6 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 7 seeking protection in this court of its Protected Material. 8 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 9 10 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 11 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 12 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 13 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 14 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 15 Be Bound” that is attached hereto as Exhibit A. 16 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 17 MATERIAL 18 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 19 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 20 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 21 modify whatever procedure may be established in an e-discovery order that provides for production 22 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 23 parties reach an agreement on the effect of disclosure of a communication or information covered by 24 the attorney-client privilege or work product protection, the parties may incorporate their agreement 25 in the stipulated protective order submitted to the court. 26 12. 27 28 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. 10 12.2 1 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 2 no Party waives any right it otherwise would have to object to disclosing or producing any 3 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 4 Party waives any right to object on any ground to use in evidence of any of the material covered by 5 this Protective Order. 12.3 6 Filing Protected Material. Without written permission from the Designating Party or a 7 court order secured after appropriate notice to all interested persons, a Party may not file in the 8 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 9 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal 10 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant 11 to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the 12 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 13 protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant 14 to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information 15 in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 16 13. 17 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 18 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 19 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 21 the Protected Material is returned or destroyed, the Receiving Party must submit a written 22 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 23 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 24 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 25 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 26 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 27 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 28 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 11 1 and expert work product, even if such materials contain Protected Material. Any such archival copies 2 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 3 Section 4 (DURATION). 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 LAFAYETTE & KUMAGAI LLP 6 7 8 9 DATED: September 25, 2017____________/s/ Jasmine L. Anderson JASMINE L. ANDERSON Attorney for Defendant HOME DEPOT U.S.A, INC. _______ 10 DOLAN LAW FIRM, P.C. 11 15 PURSUANT TO STIPULATION, IT IS SO ORDERED. 18 19 UNIT ED 17 S DISTRICT TE C TA RT U O S 16 DATED: ______ ERED 10/6/2017 ______________________________Hon. Edward ChenS SO ORD IT I United States District Judge RT 21 J ER 23 24 25 26 27 28 12 A H 22 . Chen ward M udge Ed NO 20 R NIA 14 /s/ Emile A. Davis EMILE A. DAVIS Attorney for Plaintiff LAURA REDFERN FO 13 DATED: September 25, 2017 LI 12 N F D IS T IC T O R C 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ [print or 4 type full address], declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the Northern 6 District of California on [date] in the case of ___________ [insert formal name of the case and the 7 number and initials assigned to it by the court]. I agree to comply with and to be bound by all the 8 terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply 9 could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I 10 will not disclose in any manner any information or item that is subject to this Stipulated Protective 11 Order to any person or entity except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the Northern 13 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even 14 if such enforcement proceedings occur after termination of this action. 15 I hereby appoint __________________________ [print or type full name] of 16 _______________________________________ [print or type full address and telephone number] as 17 my California agent for service of process in connection with this action or any proceedings related 18 to enforcement of this Stipulated Protective Order. 19 20 Date: ______________________________________ 21 City and State where sworn and signed: _________________________________ 22 23 Printed name: _______________________________ 24 25 Signature: __________________________________ 26 27 28 13

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