Canela v. Costco Wholesale Corporation et al

Filing 18

ORDER by Judge Claudua Wilken Granting 17 Stipulated Protective Order. (ndr, COURT STAFF) (Filed on 12/31/2013)

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Kevin J. McInerney
[e-mail]
18124 Wedge Parkway, Suite 503
Reno, Nevada 89511
Telephone:
[phone]
Facsimile:
[phone]
Attorney for Plaintiff,
LILIANA CANELA
SEYFARTH SHAW LLP
Kenwood C. Youmans (SBN 68258)
[e-mail]
David D. Kadue (SBN 113578)
[e-mail]
2029 Century Park East, Suite 3500
Los Angeles, California 90067-3021
Telephone:
[phone]
Facsimile:
[phone]
SEYFARTH SHAW LLP
William J. Dritsas (SBN 97523)
[e-mail]
560 Mission Street, 31st Floor
San Francisco, California 94105
Telephone:
[phone]
Facsimile:
[phone]
SEYFARTH SHAW LLP
Emily Schroeder (SBN 274257)
[e-mail]
333 S. Hope Street, Suite 3900
Los Angeles, California 90071
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant,
COSTCO WHOLESALE CORPORATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA - OAKLAND DIVISION

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LILIANA CANELA, individually and on
behalf of all others similarly situated,

Case No. 13-cv-03598-CW

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[PROPOSED] PROTECTIVE ORDER
Plaintiff,

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v.
Complaint Filed:

COSTCO WHOLESALE CORPORATION
and DOES 1 through 10, inclusive,

July 2, 2013

Defendants.

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1.

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PURPOSES AND LIMITATIONS
Disclosure and discovery in this action are likely to involve production of confidential,

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proprietary, or private information for which special protection from public disclosure and from

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use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the

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parties hereby stipulate for entry of a Stipulated Protective Order. The parties acknowledge that

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this Order does not confer blanket protections on all disclosures or responses to discovery and

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that the protection it affords extends only to the limited information or items that are entitled,

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

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acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates no

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entitlement to file confidential information under seal.

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2.

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DEFINITIONS
2.1

Party: any party to this action, including any party’s officers, directors,

employees, consultants, retained experts, and outside counsel (and their support staff).
2.2

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

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medium or manner generated, stored, or maintained (including, among other things, testimony,

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transcripts, photographs, videos, or tangible things) that are produced or generated in disclosures

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or responses to discovery in this matter.

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2.3

“Confidential” Information or Items: information (regardless of how generated,

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stored or maintained) or tangible things that qualify for protection under standards developed

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under Federal Rule of Civil Procedure 26(c).

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2.4

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Producing Party.

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2.5

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

Producing Party: a Party or non-party that produces Disclosure or Discovery

Material in this action.
2.6

Designating Party: a Party or non-party that designates information or items that it

produces in disclosures or in responses to discovery as “Confidential.”

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2.7

“Confidential.”

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

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Outside Counsel: attorneys who are not employees of a Party but who are retained

to represent or advise a Party in this action.

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2.9

House Counsel: attorneys who are employees of a Party.

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2.10

Counsel (without qualifier): Outside Counsel and House Counsel (as well as their

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support staffs).

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2.11

Expert: a person or business entity, including its employees and subcontractors,

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with specialized knowledge or experience in a matter pertinent to the litigation who has been

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retained by a Party or its counsel to serve as an expert witness or as a consultant in this action

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and who is not a current employee of a Party’s competitor and who, at the time of retention, has

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no pending application or offer to become an employee of a Party’s competitor. This definition

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includes a professional jury or trial consultant retained in connection with this litigation.

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2.12

Professional Vendors: persons or entities that provide litigation support services

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

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storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.

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3.

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SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also any information copied or extracted therefrom, as well as all copies,

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excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by

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parties or counsel to or in court or in other settings that might reveal Protected Material.

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4.

DURATION

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The Court’s jurisdiction to enforce the terms of the Order shall continue for six (6)

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months after the final conclusion of all aspects of the litigation. Nonetheless, the parties agree to

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abide by the confidentiality obligations imposed by this Order, which shall remain in effect until

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a Designating Party agrees otherwise in writing or a court order otherwise directs.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. To the

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extent reasonably possible, each Party or non-party that designates information or items for

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protection under this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards.

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The parties agree that, where it would be not cost effective to review every document for

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confidentiality issues, the parties may designate an entire group of documents as confidential,

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including but not limited to in the case of mass e-mail or internal document production. If the

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opposing party, upon review, feels that a particular document is not properly confidential, he or

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she may confer with the Designating Party, which shall withdraw the designation if warranted.

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Absent agreement, the parties may seek Court relief as provided herein.

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5.2

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

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

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material that qualifies for protection under this Order must be clearly so designated before the

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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 (apart from transcripts of depositions or

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other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL”

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to each page that contains protected material.

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A Party or non-party that makes original documents or materials available for inspection

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

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material it would like copied and produced. During the inspection and before the designation, all

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of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the

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inspecting Party has identified the documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for protection under this Order,

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then, before producing the specified documents, the Producing Party must affix the appropriate

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legend (“CONFIDENTIAL”) on each page that contains Protected Material.

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(b)

for testimony given in deposition or in other pretrial or trial proceedings, that the

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Party or non-party offering or sponsoring the testimony identify on the record, before the close of

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the deposition, hearing, or other proceeding that the deposition contains confidential information.

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(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

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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 failure to

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designate qualified information or items as “Confidential” does not, standing alone, waive the

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

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appropriately designated as “Confidential” after the material was initially produced, the

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Receiving Party, on timely notification of the designation, 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. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary

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economic burdens, or a later significant disruption or delay of the litigation, a Party does not

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waive its right to challenge a confidentiality designation by electing not to mount a challenge

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promptly after the original designation is disclosed.

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6.2

Meet and Confer. A Party that elects to initiate a challenge to a Designating

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Party’s confidentiality designation must do so in good faith and must begin the process by

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conferring directly with counsel for the Designating Party. In conferring, the challenging Party

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must explain the basis for its belief that the confidentiality designation was not proper and must

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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.

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6.3

Judicial Intervention. If a Party elects to press a challenge to a confidentiality

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designation, after considering the justification offered by the Designating Party (or the

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Designating Party has failed to meet and confer after repeated requests), the parties will jointly

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contact the Court to resolve the challenge, or if the Designating Party declines to participate in

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jointly contacting the Court, the challenging Party may move ex parte to bring the issue before

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the Court. Until the Court rules on the challenge, all parties shall continue to afford the material

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in question the level of protection to which it is entitled under the Producing Party’s designation.

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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

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or 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

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to the categories of persons and under the conditions described in this Order. When the litigation

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has been terminated, a Receiving Party must comply with the provisions of section 11, below

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(FINAL DISPOSITION).

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

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

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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 may

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disclose any information or item designated CONFIDENTIAL only to:

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(a)

the Receiving Party’s Outside Counsel of record in this action, as well as

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employees of said Counsel to whom it is reasonably necessary to disclose the information for

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this litigation;

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(b)

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

Party to whom disclosure is reasonably necessary for this litigation;

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(c)

experts (as defined in this Order) to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Agreement to Be Bound by Protective Order” (Exhibit

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A);

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(d)

the Court and its personnel;

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(e)

court reporters, their staffs, and Professional Vendors to whom disclosure is

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reasonably necessary for this litigation;

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(f)

during their depositions and in preparation for their depositions, witnesses in the

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action to whom disclosure is reasonably necessary. Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective

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Order;

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(g)

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information; and

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(h)

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8.

the author or any recipient of the document or the original source of the

any Party, who then shall have all the rights and duties of a Receiving Party.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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

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would compel disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in writing (by

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fax, if possible) immediately and in no event more than three court days after receiving the

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subpoena or order. Such notification must include a copy of the subpoena or court order.

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The Receiving Party also must immediately inform in writing the Party who caused the subpoena

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

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order is the subject of this Protective Order. In addition, the Receiving Party must deliver a copy

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of this Stipulated Protective Order promptly to the Party in the other action that caused the

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subpoena or order to issue.

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The purpose of imposing these duties is to alert the interested parties to the existence of

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this Protective Order and to afford the Designating Party in this case an opportunity to try to

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protect its confidentiality interests in the court from which the subpoena or order issued. The

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Designating Party shall bear the burdens and the expenses of seeking protection in that court of

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

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encouraging a Receiving Party in this action to disobey a lawful directive from another court.

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9.

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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

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material,

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and (c) inform the person or persons to whom unauthorized disclosures were made of all the

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terms of this Order.

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10.

FILING PROTECTED MATERIAL

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Without written permission from the Designating Party or a court order secured after a

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joint conference call with the magistrate judge, a Party may not file in the public record in this

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action any Protected Material. A Party that seeks to file under seal any Protected Material must

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comply with the Local Rules. In addition to placing documents in a sealed envelope with

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instructions that the document is filed pursuant to the Stipulated Protective Order and that the

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envelope is not to be opened absent further order of the court, the envelope should be labeled to

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identify the title of the case, the case number, and the title of the document.

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11.

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FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days

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after the final termination of this action, each Receiving Party must return all Protected Material

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to the Producing Party. As used in this subdivision, “all Protected Material” includes all copies,

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abstracts, compilations, summaries or any other form of reproducing or capturing any of the

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Protected Material. With permission in writing from the Designating Party, the Receiving Party

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may destroy some or all of the Protected Material instead of returning it. Whether the Protected

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

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Producing Party (and, if not the same person or entity, to the Designating Party) by the sixty day

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deadline that identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and that affirms that the Receiving Party has not retained any copies,

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abstracts, compilations, summaries or other forms of reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival

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copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney

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work product, even if such materials contain Protected Material. Any such archival copies that

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contain or constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION), above. The Court’s jurisdiction to enforce the terms of the Order shall

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continue for six (6) months after the final conclusion of all aspects of the litigation.

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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 Protective

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

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

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

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covered by this Protective Order.

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IT IS SO ORDERED.

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Dated:

12/31/2013

HON. CLAUDIA WILKEN
UNITED STATES DISTRICT COURT JUDGE

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I 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 in the case of Liliana Canela v. Costco Wholesale Corporation, Case No.

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Case No. 13-cv-03598-CW. I agree to comply with and be bound by all the terms of this

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Stipulated Protective Order. I promise that I will not disclose in any manner any information or

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item that is subject to this Stipulated Protective Order to any person or entity except in strict

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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

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Northern District of California for the purpose of enforcing the terms of the Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action. I hereby

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appoint Kevin McInerney, 18124 Wedge Parkway, Suite 503, Reno, Nevada 89511, telephone

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[phone], as my agent for service of process in connection with this action or any

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proceeding related 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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