Kimberly Erin Caselman v. Pier 1 Imports, Inc.

Filing 35

PROTECTIVE ORDER Signed by Judge Paul S. Grewal on October 28, 2014 re 34 . (psglc1S, COURT STAFF) (Filed on 10/28/2014)

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THE LEGAL AID SOCIETY, EMPLOYMENT LAW CENTER
Elizabeth Kristen, State Bar No. 218227
Sharon Terman, State Bar No. 237236
Giselle Olmedo, State Bar No. 294750
180 Montgomery Street, Suite 600
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail], [e-mail], [e-mail]

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Attorneys for Plaintiff and the Putative Class

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SEYFARTH SHAW LLP
Michael J. Burns (SBN 172614)
Email: [e-mail]
Laura Maechtlen (SBN 224923)
E-mail: [e-mail]
560 Mission Street, 31st Floor
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]

SEYFARTH SHAW LLP
Julie G. Yap (SBN 243450)
Email: [e-mail]
400 Capitol Mall, Suite 2350
Sacramento, California 95814-4428
Telephone: [phone]
Facsimile: [phone]

Attorneys for Defendant
PIER 1 IMPORTS (U.S.), INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KIMBERLY ERIN CASELMAN, on behalf
of herself and all others similarly situated,

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Plaintiff,

Case No. 5:14-cv-02383-LHK-PSG
STIPULATED PROTECTIVE ORDER

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v.
PIER 1 IMPORTS (U.S.), INC., DOES ONE
through TEN inclusive,

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Defendants.

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1.

PURPOSE AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation is warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the following
Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords extends

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only to the limited information or items that are entitled under applicable legal principles to
treatment as confidential. The parties further acknowledge, as set forth in Section 12.3, below,
that this Stipulated Protective Order creates no entitlement to file confidential information under

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seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the

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standards that will be applied when a party seeks permission from the court to file material under

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seal.

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2.

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DEFINITIONS
2.1

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

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information or items under this Order, including all of its officers, directors, employees,

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

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2.2

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

medium or manner generated, stored, or maintained (including, among other things, testimony,
transcripts, or tangible things) that are produced or generated in disclosures or responses to

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discovery in this matter.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of how

generated, stored or maintained) or tangible things that qualify for protection under standards
developed under Federal Rule of Civil Procedure 26(c).

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2.4

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

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Producing Party.

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2.5

Producing Party: a Party that produces Disclosure or Discovery Material in this

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

action.

it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.7

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

this Stipulated Protective Order.
2.8

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

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to represent or advise a Party in this action.
2.9

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

the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
consultant in this action.
2.10

Counsel (without qualifier): Outside Counsel, In-House Counsel (as well as their

support staffs) and Plaintiff’s Counsel.
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In-House Counsel: attorneys who are employees of a party to this action. In-

House Counsel does not include Outside Counsel or any other outside counsel.
2.12

Plaintiff’s Counsel: counsel for plaintiff Erin Caselman, the putative class, and

any present or future class member or class representative.
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Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
2.14

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

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consultants, retained experts, and Counsel (and their support staffs).
2.15

Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing,
storing, or retrieving data in any form or medium) 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 any testimony, conversations, or presentations

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by Parties or Counsel to or in court or in other settings that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
a result of publication not involving a violation of this Order, including becoming part of the
public record through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who

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obtained the information lawfully and under no obligation of confidentiality to the Designating

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Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
action, including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards. A

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Designating Party must take care to designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify — so that other portions of the

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material, documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit 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 encumber or slow the case development process or to impose unnecessary
expenses and burdens on other parties), expose the Designating Party to sanctions.

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If it comes to a Party’s attention that information or items that it designated for protection do not
qualify for protection at all, or do not qualify for the level of protection initially asserted, that
Party must promptly notify all other Parties that it is withdrawing the mistaken designation.
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 (e.g., paper or electronic documents, but

excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a
portion or portions of the material on a page qualifies for protection, the Producing Party also
must clearly identify the protected portion(s) (e.g., by making appropriate markings in the

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

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

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

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

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

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produced, the Producing Party must determine which documents, or portions thereof, qualify for

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

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Party must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If

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only a portion or portions of the material on a page qualifies for protection, the Producing Party

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also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins).

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(b)

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

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Designating Party identify on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony. When it is impractical to identify separately each portion of
testimony that is entitled to protection, and when it appears that substantial portions of the

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testimony may qualify for protection, a Party may invoke on the record (before the deposition or

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proceeding is concluded) a right to have up to 20 days from receipt of the transcript to identify

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the specific portions of the testimony as to which protection is sought. Only those portions of the

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testimony that are appropriately designated for protection within the 20 days shall be covered by

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the provisions of this Stipulated Protective Order.

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Transcript pages containing Protected Material must be separately bound by the court
reporter, who must affix to the top of each such page the legend “CONFIDENTIAL.”

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(c) for information produced in some form other than documentary and for any other
tangible items, that the Producing Party affix in a prominent place on the exterior of the container
or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only

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portions of the information or item warrant protection, the Producing Party, to the extent
practicable, shall identify the protected portions.
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

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the 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 assure

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that the material is treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a later significant disruption or delay of the litigation, a Party does not waive its right

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to challenge a confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2

Meet and Confer. A Party shall initiate the dispute resolution process by

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providing written notice of each designation it is challenging and describing the basis for each

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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must

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recite that the challenge to a Designating Party’s confidentiality is being made in accordance with

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this specific paragraph of the Protective Order. The parties shall attempt to resolve each

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challenge in good faith and must begin the process by conferring directly (in voice to voice

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dialogue; other forms of communication are not sufficient) within 14 days of the date of service

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of notice. In conferring, the Challenging Party must explain the basis for its belief that the

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confidentiality designation was not proper and must give the Designating Party an opportunity to
review the designated material, to reconsider the circumstances, and, if no change in designation
is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to

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the next stage of the challenge process only if it has engaged in this meet and confer process first.
6.3

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Judicial Intervention. A Party that elects to press a challenge to a

confidentiality designation after considering the justification offered by the Designating Party

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may file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule

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79-5, if applicable) within 21 days of the initial notice of challenge under 6.2 or within 14 days of

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the parties agreeing that the meet and confer process will not resolve their dispute, whichever is

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earlier, and setting forth in detail the basis for the challenge. Each such motion must be

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accompanied by a competent declaration affirming that the movant has complied with the meet

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and confer requirements imposed in the preceding paragraph and that sets forth with specificity

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the justification for the confidentiality designation that was given by the Designating Party in the

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meet and confer dialogue. Failure by the Designating Party to make such a motion including the
required declaration within 21 days (or 14 days, if applicable) shall automatically waive the
confidentiality designation for each challenged designation. In addition, the Challenging Party

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may file a motion challenging a confidentiality designation at any time if there is good cause for
doing so, including a challenge to the designation of a deposition transcript or any portions
thereof. Any motion brought pursuant to this provision must be accompanied by a competent

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

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imposed by the preceding paragraph.

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

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Until the Court rules on the challenge or the Designating Party waives the

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confidentiality designation by failing to file a motion to retain confidentiality as described above,

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all parties shall continue to afford the material in question the level of protection to which it is
entitled under the Producing Party’s designation until the court rules on the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed

or produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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 13 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

ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
disclose any information or item designated “CONFIDENTIAL” only to:

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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Counsel to whom it is reasonably necessary to disclose the information for this

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litigation and who have signed the “Agreement to Be Bound by Protective Order” that is attached
hereto as Exhibit A;
(b) the officers, directors, and employees (including In-House Counsel) of the

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

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signed the “Agreement to Be Bound by Protective Order” (Exhibit A);
(c) experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by

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Protective Order” (Exhibit A);

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(d) the Court and its personnel;

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(e) court reporters, their staff, and professional jury or trial consultants, mock jurors,

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
have signed the “Agreement to Be Bound by Protective Order” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is reasonably

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necessary and who have signed the “Agreement to Be Bound by Protective Order” (Exhibit A).
Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
Material must be separately bound by the court reporter and may not be disclosed to anyone
except as permitted under this Stipulated Protective Order.
(g) the author or recipient of the document or the original source of the information or

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

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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

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compelling disclosure of any information or items designated in this action as
“CONFIDENTIAL” the Receiving Party must:

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(a) so notify the Designating Party, in writing (by fax, if possible) immediately and in
no event more than three court days after receiving the subpoena or order. Such notification must

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include a copy of the subpoena or court order;
(b) the Receiving Party must also immediately inform in writing the Party who caused

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

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

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copy of this Protective Order;
(c)

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cooperate with respect to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party’s permission. The Designating Party
shall bear the burden and expense of seeking protection in that court of its confidential material –
and nothing in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this action to disobey a lawful directive from another court.
9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party in

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this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in

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connection with this litigation is protected by the remedies and relief provided by this Order.

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Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to produce a NonParty’s confidential information in its possession, and the Party is subject to an agreement with
the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party that some
or all of the information requested is subject to a confidentiality agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated Protective

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Order in this litigation, the relevant discovery request(s), and a reasonably specific description of
the information requested; and
(3) make the information requested available for inspection by the Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely

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seeks a protective order, the Receiving Party shall not produce any information in its possession

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or control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

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burden and expense of seeking protection in this court of its Protected Material.
10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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

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11.

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MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

When a Producing Party gives notice to Receiving Parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
provision is not intended to modify whatever procedure may be established in an e-discovery
order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
communication or information covered by the attorney-client privilege or work product
protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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12.

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MISCELLANEOUS
12.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the court in the future.
12.2

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

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

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producing any information or item on any ground not addressed in this Stipulated Protective

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Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of
the material covered by this Protective Order.
12.3 Filing Protected Material.

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Without written permission from the designating party or a court order secured after
appropriate notice to all interested persons, a party may not file in the public record in this action
any protected material. A party that seeks to file under seal any protected material must comply

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with civil local rule 79-5. Protected Material may only be filed under seal pursuant to a court

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order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local

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Rule 79-5, a sealing order will issue only upon a request establishing that the Protected Material

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at issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the

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law. If a Receiving Party’s request to file Protected Material under seal pursuant to Civil Local

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Rule 79-5(d) is denied by the court, then the Receiving Party may file the information in the

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public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.

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13.

FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the producing party, within sixty (60)

days after the final disposition of this action, as defined in paragraph 4, each receiving party must

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return all protected material to the producing party. As used in this subdivision, “all protected
material” includes all copies, abstracts, compilations, summaries, or any other form of
reproducing or capturing any of the protected material, with permission in writing from the

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designating party, the receiving party may destroy some or all of the protected material instead of

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returning it. Whether the protected material is returned or destroyed, the receiving party must

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submit a written certification to the producing party (and, if not the same person or entity, to the

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designating party) by the sixty (60) day deadline that identifies (by category, where appropriate)

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all the protected material that was returned or destroyed and that affirms the receiving party has

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not retained any copies, abstracts, compilations, summaries or other forms of reproducing or

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capturing any of the protected material. Notwithstanding this provision, counsel are entitled to

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retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda,
correspondence, work product, even if such materials contain protected material. Any such
archival copies that contain or constitute protected material remain subject to this protective

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order as set forth in section 4 (DURATION), above.

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Respectfully submitted,

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DATED: October 27, 2014

THE LEGAL AID SOCIETY, EMPLOYMENT
LAW CENTER

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By __/s/ Elizabeth Kristen_____________________
Elizabeth Kristen
Sharon Terman
Giselle Olmedo

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Attorneys for Plaintiff and the Class

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DATED: October 27, 2014

SEYFARTH SHAW LLP
By __/s/ Julie G. Yap_________________________
Michael J. Burns
Laura J. Maechtlen
Julie G. Yap

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Attorneys for Defendant
PIER 1 IMPORTS (U.S.), INC.

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EXHIBIT A

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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

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type full address], declare under penalty of perjury that I have read in its entirety and understand

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

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Northern District of California on ___________________ in the case of KIMBERLY ERIN
CASELMAN V. PIER 1 IMPORTS (U.S.), INC., Case No. 5:14-cv-02383-LHK. I agree to
comply with and to be bound by all the terms of this Stipulated Protective Order and I understand

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and acknowledge that failure to so comply could expose me to sanctions and punishment in the
nature of contempt. I solemnly promise that I will not disclose in any manner any information or
item that is subject to this Stipulated Protective Order to any person or entity except in strict
compliance with the provisions of this Order.
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 this Stipulated Protective

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

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings 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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Stipulated Protective Order / Case No. 5:14-CV-02383 LHK-PSG
18447875v.1