Rita Cortez v. Xerox Corporation

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 SOUTHERN DIVISION

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12 RITA CORTEZ, an Individual, Case No. 8:20-cv-02057-DOC-(JDEx)

13 Plaintiff,

STIPULATION AND PROTECTIVE

14 v. ORDER

15 XEROX CORPORATION, a

Corporation, SEAN HICKEY, an District: Hon. David O. Carter

16 Individual, and DOES 1through 10, Magistrate: Hon. John D. Early

inclusive, Trial Date: March 8, 2022

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Defendants.

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20 Based on the parties’ Stipulation and for good cause shown thereon, the Court

21 finds and orders as follows.

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1 1. PURPOSES AND LIMITATIONS

2 Discovery in this action is likely to involve production of confidential,

3 proprietary or private information for which special protection from public

4 disclosure and from use for any purpose other than pursuing this litigation may be

5 warranted. Accordingly, the parties hereby stipulate to and petition the Court to

6 enter the following Stipulated Protective Order. The parties acknowledge that this

7 Order does not confer blanket protections on all disclosures or responses to

8 discovery and that the protection it affords from public disclosure and use extends

9 only to the limited information or items that are entitled to confidential treatment

10 under the applicable legal principles.

11 2. GOOD CAUSE STATEMENT

12 This action is likely to involve employment records, proprietary sales

13 information, records related to internal investigations, policies, procedures, medical

14 records and handbooks , commercial, financial, technical and/or proprietary

15 information for which special protection from public disclosure and from use for

16 any purpose other than prosecution of this action is warranted. Such confidential and

17 proprietary materials and information consist of, among other things, confidential

18 business or financial information, information regarding confidential business

19 practices, or other confidential research, development, or commercial information

20 (including information implicating privacy rights of third parties), information

21 otherwise generally unavailable to the public, or which may be privileged or

22 otherwise protected from disclosure under state or federal statutes, court rules, case

23 decisions, or common law. Accordingly, to expedite the flow of information, to

24 facilitate the prompt resolution of disputes over confidentiality of discovery

25 materials, to adequately protect information the parties are entitled to keep

26 confidential, to ensure that the parties are permitted reasonable necessary uses of

27 such material in preparation for and in the conduct of trial, to address their handling

1 at the end of the litigation, and serve the ends of justice, a protective order for such

2 information is justified in this matter. It is the intent of the parties that information

3 will not be designated as confidential for tactical reasons and that nothing be so

4 designated without a good faith belief that it has been maintained in a confidential,

5 non-public manner, and there is good cause why it should not be part of the public

6 record of this case.

7 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE

8 The parties further acknowledge, as set forth in Section 14.3, below, that this

9 Stipulated Protective Order does not entitle them to file confidential information

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

11 and the standards that will be applied when a party seeks permission from the court

12 to file material under seal. There is a strong presumption that the public has a right

13 of access to judicial proceedings and records in civil cases. In connection with non-

14 dispositive motions, good cause must be shown to support a filing under seal. See

15 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),

16 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-

17 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even

18 stipulated protective orders require good cause showing), and a specific showing of

19 good cause or compelling reasons with proper evidentiary support and legal

20 justification, must be made with respect to Protected Material that a party seeks to

21 file under seal. The parties’ mere designation of Disclosure or Discovery Material as

22 CONFIDENTIAL does not— without the submission of competent evidence by

23 declaration, establishing that the material sought to be filed under seal qualifies as

24 confidential, privileged, or otherwise protectable—constitute good cause.

25 Further, if a party requests sealing related to a dispositive motion or trial, then

26 compelling reasons, not only good cause, for the sealing must be shown, and the

27 relief sought shall be narrowly tailored to serve the specific interest to be protected.

1 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For

2 each item or type of information, document, or thing sought to be filed or introduced

3 under seal, the party seeking protection must articulate compelling reasons,

4 supported by specific facts and legal justification, for the requested sealing order.

5 Again, competent evidence supporting the application to file documents under seal

6 must be provided by declaration.

7 Any document that is not confidential, privileged, or otherwise protectable in

8 its entirety will not be filed under seal if the confidential portions can be redacted. If

9 documents can be redacted, then a redacted version for public viewing, omitting

10 only the confidential, privileged, or otherwise protectable portions of the document,

11 shall be filed. Any application that seeks to file documents under seal in their

12 entirety should include an explanation of why redaction is not feasible.

13 4. DEFINITIONS

14 4.1 Action: Rita Cortez v. Xerox Corporation, et al. United States District

15 Court, Central District of California, Case No. 8:20-cv-02057-DOC (JDEx).

16 4.2 Challenging Party: a Party or Non-Party that challenges the designation

17 of information or items under this Order.

18 4.3 “CONFIDENTIAL” Information or Items: information (regardless of

19 how it is generated, stored or maintained) or tangible things that qualify for

20 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

21 the Good Cause Statement.

22 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as

23 their support staff).

24 4.5 Designating Party: a Party or Non-Party that designates information or

25 items that it produces in disclosures or in responses to discovery as

26 “CONFIDENTIAL.”

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1 4.6 Disclosure or Discovery Material: all items or information, regardless

2 of the medium or manner in which it is generated, stored, or maintained (including,

3 among other things, testimony, transcripts, and tangible things), that are produced or

4 generated in disclosures or responses to discovery.

5 4.7 Expert: a person with specialized knowledge or experience in a matter

6 pertinent to the litigation who has been retained by a Party or its counsel to serve as

7 an expert witness or as a consultant in this Action.

8 4.8 House Counsel: attorneys who are employees of a party to this Action.

9 House Counsel does not include Outside Counsel of Record or any other outside

10 counsel.

11 4.9 Non-Party: any natural person, partnership, corporation, association or

12 other legal entity not named as a Party to this action.

13 4.10 Outside Counsel of Record: attorneys who are not employees of a party

14 to this Action but are retained to represent a party to this Action and have appeared

15 in this Action on behalf of that party or are affiliated with a law firm that has

16 appeared on behalf of that party, and includes support staff.

17 4.11 Party: any party to this Action, including all of its officers, directors,

18 employees, consultants, retained experts, and Outside Counsel of Record (and their

19 support staffs).

20 4.12 Producing Party: a Party or Non-Party that produces Disclosure or

21 Discovery Material in this Action.

22 4.13 Professional Vendors: persons or entities that provide litigation support

23 services (e.g., photocopying, videotaping, translating, preparing exhibits or

24 demonstrations, and organizing, storing, or retrieving data in any form or medium)

25 and their employees and subcontractors.

26 4.14 Protected Material: any Disclosure or Discovery Material that is

27 designated as “CONFIDENTIAL.”

1 4.15 Receiving Party: a Party that receives Disclosure or Discovery

2 Material from a Producing Party.

3 5. SCOPE

4 The protections conferred by this Stipulation and Order cover not only

5 Protected Material (as defined above), but also (1) any information copied or

6 extracted from Protected Material; (2) all copies, excerpts, summaries, or

7 compilations of Protected Material; and (3) any testimony, conversations, or

8 presentations by Parties or their Counsel that might reveal Protected Material.

9 Any use of Protected Material at trial shall be governed by the orders of the

10 trial judge and other applicable authorities. This Order does not govern the use of

11 Protected Material at trial.

12 6. DURATION

13 Once a case proceeds to trial, information that was designated as

14 CONFIDENTIAL or maintained pursuant to this protective order used or introduced

15 as an exhibit at trial becomes public and will be presumptively available to all

16 members of the public, including the press, unless compelling reasons supported by

17 specific factual findings to proceed otherwise are made to the trial judge in advance

18 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

19 showing for sealing documents produced in discovery from “compelling reasons”

20 standard when merits-related documents are part of court record). Accordingly, the

21 terms of this protective order do not extend beyond the commencement of the trial.

22 7. DESIGNATING PROTECTED MATERIAL

23 7.1 Exercise of Restraint and Care in Designating Material for Protection.

24 Each Party or Non-Party that designates information or items for protection under

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

26 qualifies under the appropriate standards. The Designating Party must designate for

27 protection only those parts of material, documents, items or oral or written

1 communications that qualify so that other portions of the material, documents, items

2 or communications for which protection is not warranted are not swept unjustifiably

3 within the ambit of this Order.

4 Mass, indiscriminate or routinized designations are prohibited. Designations

5 that are shown to be clearly unjustified or that have been made for an improper

6 purpose (e.g., to unnecessarily encumber the case development process or to impose

7 unnecessary expenses and burdens on other parties) may expose the Designating

8 Party to sanctions.

9 If it comes to a Designating Party’s attention that information or items that it

10 designated for protection do not qualify for protection, that Designating Party must

11 promptly notify all other Parties that it is withdrawing the inapplicable designation.

12 7.2 Manner and Timing of Designations. Except as otherwise provided in

13 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material

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

15 the material is disclosed or produced.

16 Designation in conformity with this Order requires:

17 (a) for information in documentary form (e.g., paper or electronic

18 documents, but excluding transcripts of depositions or other pretrial or trial

19 proceedings), that the Producing Party affix at a minimum, the legend

20 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

21 contains protected material. If only a portion of the material on a page qualifies for

22 protection, the Producing Party also must clearly identify the protected portion(s)

23 (e.g., by making appropriate markings in the margins).

24 A Party or Non-Party that makes original documents available for inspection

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

26 which documents it would like copied and produced. During the inspection and

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

1 deemed “CONFIDENTIAL.” After the inspecting Party has identified the

2 documents it wants copied and produced, the Producing Party must determine which

3 documents, or portions thereof, qualify for protection under this Order. Then, before

4 producing the specified documents, the Producing Party must affix the

5 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a

6 portion of the material on a page qualifies for protection, the Producing Party also

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

8 in the margins).

9 (b) for testimony given in depositions that the Designating Party

10 identifies the Disclosure or Discovery Material on the record, before the close of the

11 deposition all protected testimony.

12 (c) for information produced in some form other than documentary and

13 for any other tangible items, that the Producing Party affix in a prominent place on

14 the exterior of the container or containers in which the information is stored the

15 legend “CONFIDENTIAL.” If only a portion or portions of the information

16 warrants protection, the Producing Party, to the extent practicable, shall identify the

17 protected portion(s).

18 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

19 failure to designate qualified information or items does not, standing alone, waive

20 the Designating Party’s right to secure protection under this Order for such material.

21 Upon timely correction of a designation, the Receiving Party must make reasonable

22 efforts to assure that the material is treated in accordance with the provisions of this

23 Order.

24 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS

25 8.1. Timing of Challenges. Any Party or Non-Party may challenge a

26 designation of confidentiality at any time that is consistent with the Court’s

27 Scheduling Order.

1 8.2 Meet and Confer. The Challenging Party shall initiate the dispute

2 resolution process under Local Rule 37-1 et seq.

3 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a

4 joint stipulation pursuant to Local Rule 37-2.

5 8.4 The burden of persuasion in any such challenge proceeding shall be on

6 the Designating Party. Frivolous challenges, and those made for an improper

7 purpose (e.g., to harass or impose unnecessary expenses and burdens on other

8 parties) may expose the Challenging Party to sanctions. Unless the Designating

9 Party has waived or withdrawn the confidentiality designation, all parties shall

10 continue to afford the material in question the level of protection to which it is

11 entitled under the Producing Party’s designation until the Court rules on the

12 challenge.

13 9. ACCESS TO AND USE OF PROTECTED MATERIAL

14 9.1 Basic Principles. A Receiving Party may use Protected Material that is

15 disclosed or produced by another Party or by a Non-Party in connection with this

16 Action only for prosecuting, defending or attempting to settle this Action. Such

17 Protected Material may be disclosed only to the categories of persons and under the

18 conditions described in this Order. When the Action has been terminated, a

19 Receiving Party must comply with the provisions of section 15 below (FINAL

20 DISPOSITION).

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

22 location and in a secure manner that ensures that access is limited to the persons

23 authorized under this Order.

24 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

25 otherwise ordered by the court or permitted in writing by the Designating Party, a

26 Receiving Party may disclose any information or item designated

27 “CONFIDENTIAL” only to:

1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as

2 well as employees of said Outside Counsel of Record to whom it is reasonably

3 necessary to disclose the information for this Action;

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

5 the Receiving Party to whom disclosure is reasonably necessary for this Action;

6 (c) Experts (as defined in this Order) of the Receiving Party to whom

7 disclosure is reasonably necessary for this Action and who have signed the

8 “Acknowledgment and Agreement to Be Bound” (Exhibit A);

9 (d) the court and its personnel;

10 (e) court reporters and their staff;

11 (f) professional jury or trial consultants, mock jurors, and Professional

12 Vendors to whom disclosure is reasonably necessary for this Action and who have

13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

14 (g) the author or recipient of a document containing the information or

15 a custodian or other person who otherwise possessed or knew the information;

16 (h) during their depositions, witnesses, and attorneys for witnesses, in

17 the Action to whom disclosure is reasonably necessary provided: (1) the deposing

18 party requests that the witness sign the form attached as Exhibit A hereto; and (2)

19 they will not be permitted to keep any confidential information unless they sign the

20 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

21 agreed by the Designating Party or ordered by the court. Pages of transcribed

22 deposition testimony or exhibits to depositions that reveal Protected Material may

23 be separately bound by the court reporter and may not be disclosed to anyone except

24 as permitted under this Stipulated Protective Order; and

25 (i) any mediators or settlement officers and their supporting personnel,

26 mutually agreed upon by any of the parties engaged in settlement discussions.

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1 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED

2 PRODUCED IN OTHER LITIGATION

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

4 that compels disclosure of any information or items designated in this Action as

5 “CONFIDENTIAL,” that Party must:

6 (a) promptly notify in writing the Designating Party. Such notification

7 shall include a copy of the subpoena or court order;

8 (b) promptly notify in writing the party who caused the subpoena or

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

10 subpoena or order is subject to this Protective Order. Such notification shall include

11 a copy of this Stipulated Protective Order; and

12 (c) cooperate with respect to all reasonable procedures sought to be

13 pursued by the Designating Party whose Protected Material may be affected. If the

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

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

16 as “CONFIDENTIAL” before a determination by the court from which the

17 subpoena or order issued, unless the Party has obtained the Designating Party’s

18 permission. The Designating Party shall bear the burden and expense of seeking

19 protection in that court of its confidential material and nothing in these provisions

20 should be construed as authorizing or encouraging a Receiving Party in this Action

21 to disobey a lawful directive from another court.

22 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

23 PRODUCED IN THIS LITIGATION

24 (a) The terms of this Order are applicable to information produced by a

25 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

26 produced by Non-Parties in connection with this litigation is protected by the

27 remedies and relief provided by this Order. Nothing in these provisions should be

1 construed as prohibiting a Non-Party from seeking additional protections.

2 (b) In the event that a Party is required, by a valid discovery request, to

3 produce a Non-Party’s confidential information in its possession, and the Party is

4 subject to an agreement with the Non-Party not to produce the Non-Party’s

5 confidential information, then the Party shall:

6 (1) promptly notify in writing the Requesting Party and the Non-Party

7 that some or all of the information requested is subject to a confidentiality

8 agreement with a Non-Party;

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

10 Protective Order in this Action, the relevant discovery request(s), and a reasonably

11 specific description of the information requested; and

12 (3) make the information requested available for inspection by the Non-

13 Party, if requested.

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

15 within 14 days of receiving the notice and accompanying information, the Receiving

16 Party may produce the Non-Party’s confidential information responsive to the

17 discovery request. If the Non-Party timely seeks a protective order, the Receiving

18 Party shall not produce any information in its possession or control that is subject to

19 the confidentiality agreement with the Non-Party before a determination by the

20 court. Absent a court order to the contrary, the Non-Party shall bear the burden and

21 expense of seeking protection in this court of its Protected Material.

22 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

24 Protected Material to any person or in any circumstance not authorized under this

25 Stipulated Protective Order, the Receiving Party must immediately (a) notify in

26 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

27 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

1 persons to whom unauthorized disclosures were made of all the terms of this Order,

2 and (d) request such person or persons to execute the “Acknowledgment an

3 Agreement to Be Bound” attached hereto as Exhibit A.

4 13. INADVERTENT PRODUCTION OF PRIVILEGED OR

5 OTHERWISE PROTECTED MATERIAL

6 When a Producing Party gives notice to Receiving Parties that certain

7 inadvertently produced material is subject to a claim of privilege or other protection,

8 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil\

9 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

10 may be established in an e-discovery order that provides for production without

11 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar

12 as the parties reach an agreement on the effect of disclosure of a communication or

13 information covered by the attorney-client privilege or work product protection, the

14 parties may incorporate their agreement in the stipulated protective order submitted

15 to the court.

16 14. MISCELLANEOUS

17 14.1 Right to Further Relief. Nothing in this Order abridges the right of any

18 person to seek its modification by the Court in the future.

19 14.2 Right to Assert Other Objections. By stipulating to the entry of this

20 Protective Order, no Party waives any right it otherwise would have to object to

21 disclosing or producing any information or item on any ground not addressed in this

22 Stipulated Protective Order. Similarly, no Party waives any right to object on any

23 ground to use in evidence of any of the material covered by this Protective Order.

24 14.3 Filing Protected Material. A Party that seeks to file under seal any

25 Protected Material must comply with Local Civil Rule 79-5. Protected

26 Material may only be filed under seal pursuant to a court order authorizing the

27 sealing of the specific Protected Material. If a Party’s request to file Protected

1 || Material under seal is denied by the court, then the Receiving Party may file the

2 || information in the public record unless otherwise instructed by the court.

3 15. FINAL DISPOSITION

4 After the final disposition of this Action, as defined in paragraph 6, within 60

5 || days of a written request by the Designating Party, each Receiving Party must return

6 || all Protected Material to the Producing Party or destroy such material. As used in

7 || this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

8 || summaries, and any other format reproducing or capturing any of the Protected

9 || Material. Whether the Protected Material is returned or destroyed, the Receiving

10 || Party must submit a written certification to the Producing Party (and, if not the same

11 || person or entity, to the Designating Party) by the 60-day deadline that (1) identifies

12 || (by category, where appropriate) all the Protected Material that was returned or

13 || destroyed and (2) affirms that the Receiving Party has not retained any copies,

14 || abstracts, compilations, summaries or any other format reproducing or capturing any

15 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to

16 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

17 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

18 || reports, attorney work product, and consultant and expert work product, even if such

19 || materials contain Protected Material. Any such archival copies that contain or

20 || constitute Protected Material remain subject to this Protective Order as set forth in

21 || Section 6 (DURATION).

22 16. VIOLATION

23 Any violation of this Order may be punished by appropriate measures

24 || including, without limitation, contempt proceedings and/or monetary sanctions.

25 FOR GOOD CAUSE SHOWN, IT IS SO RP’

26|| DATED: March 30, 2021 Abs Me af

27 JOHN EARLY

28 ted States Magistrate Judge

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1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

4 __________________________________ [print or type full address], declare under

5 penalty of perjury that I have read in its entirety and understand the Stipulated

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

7 District of California on _______________ March 30, 2021 in the case of Rita Cortez

8 v. Xerox Corporation, et al. matter, United States District Court, Central District of

9 California, Case No. 8:20-cv-02057 DOC (JDEx). I agree to comply with and to be

10 bound by all the terms of this Stipulated Protective Order and I understand and

11 acknowledge that failure to so comply could expose me to sanctions and punishment

12 in the nature of contempt. I solemnly promise that I will not disclose in any manner

13 any information or item that is subject to this Stipulated Protective Order to any

14 person or entity except in strict compliance with the provisions of this Order.

15 I further agree to submit to the jurisdiction of the United States District Court

16 for the Central District of California for the purpose of enforcing the terms of this

17 Stipulated Protective Order, even if such enforcement proceedings occur after

18 termination of this action.

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

20 ___________________________________________ [print or type full address and

21 telephone number] as my California agent for service of process in connection with

22 this action or any proceedings related to enforcement of this Stipulated Protective

23 Order.

24 Date: ______________________________________

25 City and State where sworn and signed: _________________________________

26 Printed name: _______________________________

27 Signature: __________________________________