Chavez v. PVH Corporation
Filing
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STIPULATED PROTECTIVE ORDER (MODIFIED BY THE COURT) re #30 STIPULATION WITH PROPOSED ORDER re Protective Order filed by PVH Corporation. Signed by Magistrate Judge Howard R. Lloyd on 1/3/2014. (hrllc1, COURT STAFF) (Filed on 1/3/2014)
*E-Filed: January 3, 2014*
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HOGAN LOVELLS US LLP
Dean Hansell (Bar No. 93831)
Asheley G. Dean (Bar No. 245504)
Rachel A. Patta (Bar No. 273968)
1999 Avenue of the Stars, Suite 1400
Los Angeles, California 90067
Telephone: (310) 785-4600
Facsimile: (310) 785-4601
dean.hansell@hoganlovells.com
asheley.dean@hoganlovells.com
rachel.patta@hoganlovells.com
Attorneys for Defendant
PVH Corporation
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Larry W. Lee (State Bar No. 228175)
lwlee@diversitylaw.com
Daniel H. Chang (State Bar No. 183803)
dchang@diversitylaw.com
DIVERSITY LAW GROUP, A
Professional Corporation
550 S. Hope Street, Suite 2655
Los Angeles, California 90071
(213) 488-6555
(213) 488-6554 facsimile
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Attorneys for Plaintiff and the Class
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(Additional Counsel on Next Page)
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UNITED STATES DISTRICT COURT FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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Jessie Chavez, as an individual and on
behalf of all others similarly situated,
Plaintiff,
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Case No. C 13-01797 LHK (HRL)
[PROPOSED] STIPULATED
PROTECTIVE ORDER
(MODIFIED BY COURT)
v.
PVH Corporation, a Delaware
Corporation,
Defendant.
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William L. Marder (State Bar No. 170131)
bill@polarislawgroup.com
POLARIS LAW GROUP
501 San Benito Street, Suite 200
Hollister, California 95023
(831) 531-4214
(831) 634-0333 facsimile
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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff
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Jessie Chavez (“Plaintiff”) and Defendant PVH Corp. (“Defendant”), through their
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counsel of record, jointly submit for the Court’s approval this Stipulated Protective
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Order to govern the handling of information and materials produced in the course of
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discovery or filed with the Court in this action.
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GOOD CAUSE STATEMENT
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It is the intent of the parties and the Court that information not be designated
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as confidential solely for tactical reasons in this case and that nothing be so
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designated without a good faith belief that there is good cause why it should not be
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part of the public record of this case. That intention notwithstanding, the parties
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anticipate that trade secrets, or confidential, proprietary, or private information
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(including health and medical information), or other information of a sensitive
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nature that is not generally known or readily accessible to the general public
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belonging to the parties or third persons will be produced or exchanged during the
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pendency of the above-captioned litigation. This confidential, proprietary or
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private information needs protection so that it is not publicly disclosed to the
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detriment of its owners. Examples of confidential, proprietary, or private
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information that the parties may seek to protect from unrestricted or unprotected
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disclosure include:
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(a)
agreement or obligation;
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(b)
Information related to internal operations and policies, including
personnel information;
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Information that is the subject of a non-disclosure or confidentiality
(c)
Trade secrets (as defined by the California Uniform Trade Secrets Act
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or by the law of the jurisdiction in which the information is located), or
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other confidential research, development or commercial information,
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or information of a sensitive nature that is not generally known or
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readily accessible to the general public;
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(d)
Personal identification information; and
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(e)
Personal health and medical information.
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Unrestricted or unprotected disclosure of such confidential, proprietary, or
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private information would result in prejudice or harm to the producing party by
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revealing the producing party’s competitive confidential information, which has
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been developed at the expense of the producing party and which represents valuable
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tangible and intangible assets of that party. Additionally, privacy interests
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(including with respect to personal identification information and/or medical and
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health information of individuals) must be safeguarded.
Accordingly, the parties respectfully submit that there is good cause for the
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entry of this Protective Order.
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The parties agree, subject to the Court’s approval, that the following terms
and conditions shall apply to this civil action.
1.
This Protective Order shall govern the production and handling of
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documents, data, communications, electronically stored information and
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documentation associated therewith, answers or responses to interrogatories,
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requests for documents, requests for admissions, testimony at depositions,
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associated transcripts and exhibits, pleadings and associated exhibits, other
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discovery taken pursuant to the Federal Rules of Civil Procedure, and all
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information and documents, regardless of media, exchanged between the parties, or
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produced by any third party, whether voluntarily, in response to discovery requests
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or subpoenas, or otherwise and irrespective of whether the production, answers to
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written discovery, pleadings or discovery were conducted before or after entry of
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this Protective Order.
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2.
“Confidential Information” shall mean and collectively refer to
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information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
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pursuant to the terms of this Protective Order. The designation
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“CONFIDENTIAL” shall be limited to information, regardless of the form in which
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such information is disclosed, that any disclosing party, including any non-party to
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this action, in good faith, believes to contain (a) proprietary or commercially
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sensitive information; (b) information that is the subject of a non-disclosure or
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confidentiality agreement or obligation; (c) current or past (to the extent they reflect
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on current) methods, procedures and processes relating to the disclosing party’s
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respective business practices and internal operations and policies; (d) Plaintiff’s
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health and medical information, including, but not limited to, information regarding
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medical diagnosis and treatment; and (e) information, including but not limited to
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financial information, that should otherwise be subject to confidential treatment.
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The designation “CONFIDENTIAL” does not include information or materials
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available to the public through means other than disclosure by parties or non-parties
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in violation of this Protective Order.
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3.
Information to be treated under this Protective Order as Confidential
Information shall include:
(a)
information furnished voluntarily or set forth in response to
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discovery requests, provided that the information or responses are plainly marked
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or otherwise identified by the producing party as “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL,” including Confidential Information retroactively designated as
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information as permitted by
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Sections 19 through 22 of this Protective Order;
(b)
information derived from or set forth in documents made
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available for inspection by the producing party voluntarily or under Rules 26, 33,
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34 or 36 of the Federal Rules of Civil Procedure, or pursuant to subpoena, and that
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are identified, at the time of inspection, as comprising Confidential Information;
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(c)
information derived from or set forth in any copies of
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documents produced to the discovering party, voluntarily or under Rules 26, 33, 34
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or 36 of the Federal Rules of Civil Procedure, provided that the copies are marked
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by the producing party, preferably at the lower edge of each page, as
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”, including Confidential
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Information retroactively designated as “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL” information as permitted by Sections 19 through 22 of this
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Protective Order;
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(d)
information revealed by inspection of things or premises,
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voluntarily or under Rule 34 of the Federal Rules of Civil Procedure provided that,
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prior to the inspection, the party permitting inspection states in writing that its
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Confidential Information will be disclosed by the inspection and specifies, in
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writing, the general nature, categories, or parts of the things, or those general areas
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of the premises, in which its Confidential Information will be revealed;
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(e)
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information revealed during depositions upon oral examination
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under Rule 30 of the Federal Rules of Civil Procedure or pursuant to subpoena,
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except that the information revealed during any particular deposition shall cease to
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be Confidential Information thirty (30) days after the deposition transcript becomes
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available, unless before the thirty (30) day period has expired, the witness, his
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employer or his counsel designates either on the record or in writing that
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Confidential Information of the witness, or his employer, which is set forth in the
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transcript, or identifies either on the record or in writing the portions of the
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transcript that set forth that Confidential Information. In the case of non-party
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witnesses, either a party or the non-party witness may designate information
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revealed as Confidential Information within thirty (30) days after the deposition
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transcript becomes available. Information contained in deposition transcripts that
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became available before the date of entry of this Protective Order may be
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designated as Confidential Information within thirty (30) days after entry of this
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Protective Order; and
(f)
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any summary, digest, analysis or comment on any information
identified in categories (a) - (e).
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Information designated as “CONFIDENTIAL” may be disclosed only to
the following persons:
(a)
a party, or officer, or current employee of a party, who has
executed a Certification attached hereto as Exhibit A;
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(b)
in-house counsel of a named party;
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(c)
outside counsel representing a named party, including all
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paralegal assistants, and stenographic and clerical employees working under the
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supervision of such counsel;
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(d)
court reporters, videographers, interpreters, translators, copy
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services, graphic support services, document imaging services and database/coding
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services retained by counsel to assist with this action;
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(e)
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actual or potential experts or consultants who are retained by
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any attorney described in Paragraphs 4(b) or (c) to assist with this action, and who
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execute a Certification attached hereto as Exhibit A;
(f)
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a person who prepared, received or reviewed the
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“CONFIDENTIAL” information prior to its production in the above-captioned
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action;
(g)
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during depositions and preparation for depositions, a deposition
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witness who is a current or former employee of the party that produced the
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applicable document(s), or who appears, based upon the document itself or
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testimony in a deposition, to have knowledge of the contents of the document
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designated “CONFIDENTIAL”, or the specific events, transactions, discussions or
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date reflected in the document, provided such witness executes a Certification
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attached hereto as Exhibit A;
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(h)
Non-party witnesses or persons to be interviewed in the
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investigation of the above-captioned matter, to the extent deemed reasonably
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necessary by counsel to aid in the prosecution, defense or settlement of the above-
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captioned matter, and provided such witnesses or persons execute a Certification
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attached hereto as Exhibit A;
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(i)
any private mediators used in this action; and
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(j)
the Court, and any Special Masters and/or Mediators appointed
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by the Court.
5.
The designation “HIGHLY CONFIDENTIAL” shall be limited to
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information, regardless of the form in which such information is disclosed, that any
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disclosing party, including non-parties to this action, in good faith, believes to
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contain (a) non-public, personal or other Confidential Information relating to or
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concerning current and/or former employees of any party, including personal
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identification information; (b) trade secrets (as defined by the California Uniform
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Trade Secrets Act or by the law of the jurisdiction in which the information is
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located), or other confidential research, development or commercial information, or
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information of a sensitive nature that is not generally known or readily accessible to
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the general public; (c) other “CONFIDENTIAL” information (as defined in
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Paragraph 2), the disclosure of which is likely to cause competitive or commercial
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injury to the disclosing party; (d) financial, technological, operational, sales,
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marketing, pricing and/or other proprietary information relating to any party’s
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business that is not publicly available or known and that would be of benefit to a
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competitor of the disclosing party; and (e) such other information, documents
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and/or data within any party’s possession, custody or control as to which the
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disclosing party believes that it has a legal obligation to protect its confidentiality.
See Paragraphs 5.1 and 5.2 on page 7.1.
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6.
Information designated “HIGHLY CONFIDENTIAL” may be disclosed
only to the following persons:
(a) outside counsel of record, including all paralegal assistants, and
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stenographic and clerical employees working under the supervision of such
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counsel;
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(b) court reporters, videographers, translators, copy services,
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graphic support services, document imaging services and database/coding services
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retained by counsel to assist with this action;
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(c) potential or actual experts or consultants who (i) are retained by
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any attorney described in Paragraphs 4(b) and (c) to assist with this matter, and (ii)
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who execute a Certification attached hereto as Exhibit A;
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(d) a person who prepared, received or reviewed the “HIGHLY
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CONFIDENTIAL” information prior to its production in the above-captioned
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matter, with respect to such information only;
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(e) during depositions and preparation for depositions, a deposition
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witness who is a current or former employee of the party that produced the
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applicable document(s) or who appears, based upon the document itself or
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testimony in a deposition, to have knowledge of the contents of the document
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5. . Exercise of Restraint and Care in Designating Material for Protection: Each Party or Non-
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Party that designates information or items for protection under this Order must take care to limit any
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such designation to specific material that qualifies under the appropriate standards. The Designating
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Party must designate for protection only those parts of material, documents, items, or oral or written
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communications that qualify—so that other portions of the material, documents, items, or
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communications for which protection is not warranted are not swept unjustifiable within the ambit
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of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
For the Northern District of California
United States District Court
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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
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Parties that it is withdrawing the mistaken designation.
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designated “HIGHLY CONFIDENTIAL” or specific events, transactions,
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discussions or date reflected in the document, provided such witness executes a
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Certification attached hereto as Exhibit A;
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(f) any private mediators utilized in this action;
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(g) the Court, and any Special Masters and/or Mediators appointed
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by the Court.
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All information designated “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL” in accordance with the terms of this Protective Order and
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disclosed, produced or exchanged in the course of this action shall be used or
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disclosed solely for the purpose of this action, and in accordance with the
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provisions of this Protective Order. Such “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL” information shall not be used for any business purpose, or in
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any other litigation or proceeding, or for any other purpose, except as authorized by
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order of this court. The foregoing notwithstanding, this Protective Order has no
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effect on, and shall not extend to, any party’s use of its own Confidential
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Information.
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8.
If a party receiving Confidential Information, including, without
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limitation, its employees, agents or consultants, is compelled to disclose any of a
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disclosing party’s “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
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information pursuant to applicable law, rule, regulation, court order or subpoena
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(each a “Requirement”), the receiving party shall promptly notify the disclosing
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party of any such Requirement, and shall cooperate with the disclosing party to
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obtain a protective order or other appropriate arrangement pursuant to which the
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confidentiality of the disclosing party’s “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL” information is preserved. Provided that the
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producing/disclosing party makes a timely motion or other application for relief
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from the Requirement in the appropriate forum, the person or party subject to the
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subpoena, or other request, shall not produce or disclose the requested information
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without the consent of the disclosing/producing party, or until ordered to do so by a
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court of competent jurisdiction. If such an order or arrangement is not obtained, the
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receiving party shall disclose only that portion of the disclosing party’s
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information as is required
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pursuant to such Requirement. Any such required disclosure shall not change the
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status of the disclosed information as the disclosing party’s “CONFIDENTIAL” or
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“HIGHLY CONFIDENTIAL” information under the terms of this Protective Order.
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9.
Counsel shall provide each person to whom they disclose, or give access
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to, “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information, a copy of
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this Protective Order and shall advise each such person of his or her obligation to
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comply with the terms of the Protective Order. Each person who has received or
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been given access to “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
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information pursuant to Paragraphs 4(a), (e), (g) and (h) or Paragraphs 6(c) or (e)
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shall sign the Certification attached hereto as Exhibit “A.” Persons receiving
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information are prohibited
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from disclosing it to any person, except in conformance with this Protective Order.
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The recipient of any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
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information agrees to subject himself or herself to the jurisdiction of this Court for
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the purposes of any proceedings relating to the performance of, compliance with or
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violation of this Protective Order. Counsel shall maintain a file of all executed
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Certifications pursuant to this Protective Order. The Court will retain jurisdiction to enforce
the terms of this Protective Order for a period of 6 months after final disposition.
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10. The recipient of any “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL” information shall maintain such information in a secure and
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safe area, and shall exercise due and proper care with respect to the storage,
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custody, use and/or dissemination of such information.
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11. In designating information “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL,” the producing or testifying party or person, including third
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parties, will make such designation only as to that information that it, in good faith,
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believes is “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”
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12. All or any part of a document, tangible item, discovery response or
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pleading disclosed, produced or filed by any party or person in the above-captioned
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matter may be designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
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information by the producing or disclosing party or person by marking the
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appropriate legend on the face of the document and each page so designated. With
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respect to tangible items, the appropriate legend shall be marked on the face of the
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tangible item, if practicable, or by written notice at the time of disclosure,
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production or filing to the party to which disclosure is made that such tangible item
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is “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Electronically stored
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information produced in a format that does not permit the disclosing party to affix
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an appropriate confidentiality legend to each piece of data shall have the
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appropriate confidentiality designation made in a transmittal letter that accompanies
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the production of such material and, to the extent practical, the disclosing party
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shall affix an appropriate legend on the media on which such data is produced.
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13. Deposition testimony and exhibits (or portions thereof) of any witness
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that have been designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
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shall be labeled as follows: If any portion of a videotaped deposition is so
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designated, the videocassette, other videotape, CD ROM, DVD or other container
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shall be labeled with the appropriate legend. For testimony or exhibits designated
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as Confidential Information after receipt of the deposition transcript, the deponent,
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his/her counsel or any other designating party shall serve on all counsel a list of the
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page and line numbers of the deposition transcript containing “CONFIDENTIAL”
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or “HIGHLY CONFIDENTIAL” information. A party may reasonably request a
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shortening of the time period within which a confidentiality designation for a
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deposition transcript must be made for the purpose of conducting effective
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discovery, and consent to such a request shall not be unreasonably withheld. In the
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event of a dispute as to a request for a shortened time period, the parties shall first
comply with the undersigned's Standing Order re: Civil Discovery Disputes.
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try to resolve the dispute in good faith on an informal basis. If the dispute cannot
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be resolved within five (5) business days, the party requesting the shortened time
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period may request appropriate relief from the Court. The parties agree, subject to
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Court approval, that such relief sought can be in the form of a telephone conference
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to be scheduled at the Court’s earliest convenience with the objective of obtaining a
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prompt resolution of the dispute.
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14. If a party wishes to file with the Court any documents or pleadings that
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constitute or contain information designated as “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL” pursuant to this Protective Order, then that party must, prior to
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filing such documents or pleadings, move the Court for an order sealing such
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documents or pleadings in compliance with the requirements of Local Rule 79-5,
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which is hereby fully incorporated by reference.
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15. At the request of a disclosing party, the Court may limit or restrict any
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person(s) not permitted access to “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL” information from attending any hearing or deposition at which
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such information is revealed. Any such request by a disclosing party must comply with the
undersigned's Standing Order re: Civil Discovery Disputes.
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16. Nothing in this Order shall be construed in any way as a finding that
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information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
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actually is Confidential Information. Any party may object, in writing, to another
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party’s or a non-party’s designation by specifying the information at issue and the
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grounds for questioning the designation. A party shall not be obligated to challenge
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the propriety of a designation at the time made, and a failure to do so shall not
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preclude any subsequent challenge. In the event that any party to the above^
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captioned matter disagrees at any time with the designation by the disclosing party,
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the parties shall try first to resolve said dispute in good faith on an informal basis.
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If the Parties cannot resolve a challenge without court intervention, the Designating
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Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7
unless a prompt challenge is necessary to avoid foreseeable harm.
Parties shall
comply with the undersigned's Standing Order re: Civil Discovery disputes.
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(and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable)
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within 21 days of the initial notice of challenge or within 14 days of the parties
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agreeing that the meet and confer process will not resolve their dispute, whichever
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is earlier. Each such motion must be accompanied by a competent declaration
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affirming that the movant has complied with the meet and confer requirements
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imposed in the preceding paragraph. Failure by the Designating Party to make such
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timely seek judicial intervention
a motion including the required declaration within 21 days (or 14 days, if
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applicable) shall automatically waive the confidentiality designation for each
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challenged designation. In addition, the Challenging Party may file a motion
seek relief with
respect to
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challenging a confidentiality designation at any time if there is good cause for doing
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so, including a challenge to the designation of a deposition transcript or any
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portions thereof. Any motion brought pursuant to this provision must be
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accompanied by a competent declaration affirming that the movant has complied
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with the meet and confer requirements imposed by the preceding paragraph. The
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burden of persuasion in any such challenge proceeding shall be on the Designating
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Party. Unless the Designating Party has waived the confidentiality designation by
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failing to file a motion to retain confidentiality as described above, all parties shall
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continue to afford the material in question the level of protection to which it is
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entitled under the Producing Party’s designation until the court rules on the
20
challenge.
seek relief
21
17. Nothing herein shall be construed to be an admission of relevance or to
22
affect, in any way, the admissibility of any documents, testimony or other evidence
23
in the above-captioned matter. This Protective Order is without prejudice to the
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right of any party to bring before the Court at any time the question of whether any
25
particular information is or is not discoverable or admissible.
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18. Nothing in this Protective Order shall bar or otherwise restrict any
27
attorney from advising his or her clients with respect to the above-captioned matter
28
and in the course thereof, referring to or relying upon the attorney’s examination of
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information so long as the
2
attorney does not disclose “HIGHLY CONFIDENTIAL” information or its
3
contents in the course of such advice – except as and to the extent permitted by this
4
Protective Order.
5
19. The inadvertent or mistaken disclosure by a disclosing party of
6
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information that is
7
unmarked or incorrectly designated shall not constitute a waiver of any claim of
8
confidentiality where: (a) the disclosing party notifies a receiving party in writing
9
of such inadvertent or mistaken disclosure within ten (10) business days of
10
becoming aware of such disclosure, and (b) within thirty (30) days of such notice,
11
the disclosing party provides properly re-designated documents to the receiving
12
party. During the thirty (30)-day period after notice, the materials shall be treated
13
as designated in the disclosing party’s notice. Upon receipt of properly re-
14
designated documents, the receiving party shall return all unmarked or incorrectly
15
designated documents and other materials to the disclosing party within five (5)
16
business days, including any copies thereof. The receiving party shall not retain
17
originals or copies of unmarked or incorrectly designated materials and shall treat
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information contained in said documents and materials and any summaries or notes
19
thereof as appropriately marked pursuant to the disclosing party’s notice. All such
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unmarked or incorrectly designated information that is maintained or reflected in
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computer databases, backup tapes, or any other electronic form shall be erased by
22
the receiving party in a manner that renders the information irretrievable by the
23
receiving party and any other person or entity.
24
20. Should any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
25
information be disclosed, through inadvertence or otherwise, by a receiving party to
26
any person or party not authorized to receive it under this Protective Order, then the
27
receiving party shall:
28
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(a)
use its best efforts to obtain the return of any such
2
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information, and to bind
3
such person or party to the terms of this Protective Order;
4
(b)
immediately upon the discovery of such disclosure, but no later
5
than one (1) day therefrom, inform such person who received such information of
6
all provisions of this Protective Order and identify such person or party to the
7
disclosing party; and
8
(c)
request that such person or party sign the Certification attached
9
hereto as Exhibit A. The executed Certification shall be served upon counsel for
10
the disclosing party within ten (10) business days of its execution by the party to
11
whom the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information was
12
inadvertently disclosed. Nothing in this Paragraph is intended to limit the remedies
13
that the disclosing party may pursue for breach of this Protective Order.
14
21. Federal Rule of Evidence 502 applies to this Protective Order. The
15
inadvertent or erroneous disclosure and/or production of documents claimed to be
16
subject to either the attorney-client privilege or work product doctrine does not
17
waive the applicability of such privilege or doctrine, either generally or relative to
18
the inadvertently or erroneously disclosed and/or produced documents. If any such
19
documents are inadvertently or erroneously disclosed to the receiving party by the
20
producing party, and the requirements of Federal Rule of Evidence 502(b) have
21
been satisfied, the producing party may request that the receiving party return such
22
documents to the producing party, and the receiving party must immediately
23
comply by, to the extent reasonably practicable and consistent with the technology
24
used by the producing party to produce the documents, returning such documents
25
and destroying any copies, notes or memoranda concerning the privileged
26
information. If, however, the receiving party disagrees with the claim that the
27
documents were inadvertently or erroneously produced, with the claim of privilege
28
or work-product protection, or with the claim that otherwise privileged or work-
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product documents are entitled to privilege or protection, as to each allegedly
2
inadvertently or erroneously disclosed and/or produced document, the receiving
3
party may object to the return of the document by giving written notice to the party
4
claiming the privilege and inadvertent production. The written notice shall identify
5
the document to which the objection is made. If the parties cannot resolve the
6
objection within ten (10) business days after the time the notice is received, it shall
7
be the obligation of the party claiming the privilege, protection or inadvertent /
8
erroneous production to^file an appropriate motion requesting that the Court
9
determine the validity of the privilege, protection or inadvertent / erroneous
seek judicial relief per the undersigned's Standing Order re: Civil Discovery Disputes
10
production claim within five (5) court days after the expiration of the ten (10) day
11
meet and confer period. If the party claiming the privilege, protection or
12
inadvertent / erroneous production fails to file such a motion within the prescribed
13
time, the receiving party may retain the disputed document, which shall not
14
thereafter be treated as privileged or protected. In connection with a motion filed
15
under this provision, the party claiming the privilege, protection or inadvertent /
16
erroneous production shall bear the burden of establishing that good cause exists for
17
the disputed document to be treated as privileged or protected and inadvertently or
18
erroneously produced. The parties agree that steps taken by a producing party to
19
prevent any inadvertent or erroneous disclosure shall not be grounds to claim that
20
such disclosure creates a waiver of privilege. The parties further agree that any
21
delay in the discovery of inadvertently or erroneously disclosed privileged
22
information by the producing party shall not be grounds to claim that the privilege
23
is waived. The disputed document shall be treated as privileged or protected and
24
inadvertently or erroneously produced until either the Court rules on the motion
25
filed under this provision, or the time for filing such a motion has expired. The
26
parties acknowledge that issues of privilege may also arise under foreign law and/or
27
may be litigated in the foreign proceedings. Nothing in this agreement is intended
28
to affect any party's right to claim privilege or work product protection in the
DDJR
DDJR
seeking judicial relief
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foreign proceedings, or any counter argument or argument of waiver in respect of
2
any such claim.
3
22. If, in connection with the above-captioned matter, a party discloses
4
information subject to a claim of attorney-client privilege or attorney work product
5
protection (“'Disclosed Protected Information”), the disclosure of the Disclosed
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Protected Information shall not constitute or be deemed a waiver or forfeiture of
7
any claim of privilege or work product protection that the disclosing party would
8
otherwise be entitled to assert with respect to the Disclosed Protected Information
9
and its subject matter. A disclosing party may assert in writing attorney-client
10
privilege or work product protection with respect to Disclosed Protected
11
Information. The receiving party shall, within five business days of receipt of that
12
writing, return or destroy all copies of the Disclosed Protected Information and
13
provide a certification of counsel that all such Disclosed Protected Information has
14
been returned or destroyed. Within five business days of the notification that such
15
Disclosed Protected Information has been returned or destroyed, the disclosing
16
party shall produce a privilege log with respect to the Disclosed Protected
17
Information. The receiving party then may move the Court for an Order
18
compelling production of the Disclosed Protected Information (a “Privilege
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Motion”) and shall not assert as a ground for entering such an Order the fact or
20
circumstances of the inadvertent production. The moving party, however, shall first
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request, pursuant to Local Rule 79-5, the Court to order that the Privilege Motion
22
be filed under seal. The disclosing party retains the burden of establishing
23
privileged or protected nature of any Disclosed Protected Information. Nothing in
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this paragraph shall limit the right of any party to petition the Court for an in
25
camera review of the Disclosed Protected Information. If, at trial, at a hearing, at a
26
deposition or on a motion, a disclosing party marks for identification or offers into
27
evidence Disclosed Protected Information — or proffers or elicits testimonial or
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other evidence that incorporates or relies on Disclosed Protected Information,
seek judicial relief in compliance with the undersigned's Standing Order
parties
DDJR
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including evidence within Federal Rule of Evidence 703 — that act shall be deemed
2
to effect a waiver and forfeiture by the disclosing party of attorney-client privilege
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and work product protection that would otherwise apply to undisclosed information
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concerning the same subject matter, within Federal Rule of Evidence 502(a). The
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preceding sentence shall not apply to (i) proceedings to determine whether the
6
Disclosed Protected Information is privileged or protected or subject to discovery or
7
disclosure, or (ii) Disclosed Protected Information that is marked for identification,
8
offered into evidence or incorporated in evidence proffered or elicited by an
9
adverse party, or relied on by a witness proffered by an adverse party. The parties
10
expressly agree, in order to save the significant expense and burden of pre-
11
production privilege review, that a party may produce its information, including
12
without limitation hard copy and electronic documents and electronic data without
13
first reviewing such materials for work product or attorney client privilege and that
14
such a production will not in any manner constitute a waiver of privilege or work
15
product protections.
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23. A disclosing person or entity who is not a party in the above-captioned
17
matter may invoke and take advantage of and thereupon shall be entitled to the
18
protections afforded herein by signing a copy of this Protective Order and serving
19
same on all counsel of record. Thereafter, a disclosing person or entity may
20
designate as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” testimony,
21
information, documents or things that such disclosing person or entity has produced
22
or provided in the above-captioned matter. Any non-party electing to invoke and
23
take advantage of the provisions of this Protective Order by doing so irrevocably
24
consents to the personal jurisdiction of this Court to exclusively adjudicate any
25
dispute arising under or in connection with this Protective Order. The Court will retain
jurisdiction to enforce the terms of this Protective Order for six months after final disposition.
26
24. The parties agree that after final termination of this action, including the
27
resolution of all appellate proceedings, outside counsel for each named party may
28
each retain one copy of deposition transcripts and exhibits, court transcripts and
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exhibits, and documents and other materials submitted to the Court. Such materials
2
shall continue to be treated as designated under this Protective Order. Nothing
3
herein shall require the return or destruction of attorney work product.
4
25. The parties agree that within sixty (60) days after the final termination
5
of the above-captioned matter, each party that has received, and counsel for all
6
parties (including their paralegals, assistants, and stenographic and clerical
7
employees) who have received, and experts and consultants, potential or actual, for
8
all parties who have received “CONFIDENTIAL” or “HIGHLY
9
CONFIDENTIAL” information shall either (a) return all “CONFIDENTIAL” or
10
“HIGHLY CONFIDENTIAL” information in his/her possession, custody or control
11
or in the custody of any authorized agents, outside experts and consultants retained
12
or utilized by counsel for the receiving party to counsel for the party who has
13
provided such “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information;
14
or (b) certify destruction thereof to the disclosing party’s counsel. All
15
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information maintained in or
16
reflected in computer databases, backup tapes, or any other electronic form shall be
17
erased by the receiving party in a manner that renders all such information
18
irretrievable by the receiving party and any other person or entity.
19
26. The Court and its personnel are not obligated to destroy or return
20
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information, or other
21
information or documents that are filed under seal. Further, the Court and its
22
personnel are not obligated to destroy or return materials subject to the attorney-
23
client privilege and/or work product protection filed under seal. Court personnel
24
who receive such information are not required to sign this Protective Order.
25
27. Nothing in this Protective Order shall allow non-testifying experts and
26
consultants to be deposed or otherwise be the subject of discovery other than as
27
provided under the Federal Rules of Civil Procedure.
28
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28. Nothing in this Protective Order shall prevent any party from applying
2
to the Court for relief therefrom, or from applying to the Court for further or
3
additional protective orders or for a modification of this Protective Order.
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IT IS SO ORDERED.
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January 3
DATE: _____________, 2013 2014
___________________________________
THE HON. LUCY H. KOH
UNITED STATES DISTRICT
COURT JUDGE
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UNITED STATES MAGISTRATE JUDGE
HOWARD R. LLOYD
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STIPULATION
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IT IS HEREBY STIPULATED by and among the parties, through their
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respective counsel, this Honorable Court consenting, that the foregoing Stipulated
4
Protective Order may be entered in this action.
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Dated: August 19, 2013
HOGAN LOVELLS US LLP
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By: /s/ Dean Hansell
Dean Hansell
Asheley Dean
Rachel Patta
Attorneys for Defendant
PVH CORPORATION
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Dated: August 19, 2013
DIVERSITY LAW GROUP
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By: /s/ Larry W. Lee (with authorization)
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Larry W. Lee
Daniel H. Chang
Attorneys for Plaintiff
JESSIE CHAVEZ
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Dated: August 19, 2013
POLARIS LAW GROUP
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By: /s/ William A. Marder (with authorization)
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William A. Marder
Attorneys for Plaintiff
JESSIE CHAVEZ
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EXHIBIT A
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HOGAN LOVELLS US LLP
Dean Hansell (Bar No. 93831)
Asheley G. Dean (Bar No. 245504)
Rachel A. Patta (Bar No. 273968)
1999 Avenue of the Stars, Suite 1400
Los Angeles, California 90067
Telephone: (310) 785-4600
Facsimile: (310) 785-4601
dean.hansell@hoganlovells.com
asheley.dean@hoganlovells.com
rachel.patta@hoganlovells.com
Attorneys for Defendant
PVH Corporation
13
Larry W. Lee (State Bar No. 228175)
lwlee@diversitylaw.com
Daniel H. Chang (State Bar No. 183803)
dchang@diversitylaw.com
DIVERSITY LAW GROUP, A
Professional Corporation
550 S. Hope Street, Suite 2655
Los Angeles, California 90071
(213) 488-6555
(213) 488-6554 facsimile
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Attorneys for Plaintiff and the Class
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(Additional Counsel on Next Page)
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UNITED STATES DISTRICT COURT FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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Jessie Chavez, as an individual and on
behalf of all others similarly situated,
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ACKNOWLEDGEMENT OF
STIPULATED PROTECTIVE
ORDER
Plaintiff,
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Case No. C 13-01797 LHK
v.
PVH Corporation, a Delaware
Corporation,
Defendant.
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2
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William L. Marder (State Bar No. 170131)
bill@polarislawgroup.com
POLARIS LAW GROUP
501 San Benito Street, Suite 200
Hollister, California 95023
(831) 531-4214
(831) 634-0333 facsimile
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By my signature, I hereby acknowledge that I have read the Stipulated
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Protective Order, dated _________, 2013 (the “Protective Order”) entered in Jessie
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Chavez, individually and on behalf of all others similarly situated v. PVH
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Corporation pending in the United States District Court for the Northern District of
5
California and hereby agree to abide by the obligations and terms thereof. I further
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agree that to the extent that my employees are provided with “CONFIDENTIAL”
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or “HIGHLY CONFIDENTIAL” Designated Materials, I will instruct such
8
employees regarding the terms of the Protective Order. I further agree to subject
9
myself to the jurisdiction of the United States District Court for the Northern
10
District of California with respect to all matters relating to compliance with the
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Protective Order.
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Dated: _____________________
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______________________________
(Signature)
______________________________
(Print Name)
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