Rosely Zapon v. Costco Wholesale Corporation

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

10 | ROSELY ZAPON, Case No. 2:20-cv—-11415 ODW (RAOx)

11 Plaintiff,

12 VS.

13 || COSTCO WHOLESALE OFEULATED PROTECTIVE

4 Gelksine LON: and DOES | to 25,

15

Defendant.

16

17 1. A. PURPOSES AND LIMITATIONS

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

19 || proprietary or private information for which special protection from public disclosure

29 || and from use for any purpose other than prosecuting this litigation may be warranted.

91 || Accordingly, the parties hereby stipulate to and petition the Court to enter the

92 || following Stipulated Protective Order. The parties acknowledge that this Order does

93 || not confer blanket protections on all disclosures or responses to discovery and that

94 || the protection it affords from public disclosure and use extends only to the limited

95 || information or items that are entitled to confidential treatment under the applicable

26 || legal principles.

27

3g || | This Stipulated Protective Order is substantially based on the model protective

order provided under Magistrate Judge Rozella A. Oliver’s Procedures.

1 B. GOOD CAUSE STATEMENT

2 This action is likely to involve trade secrets, technical and/or proprietary

3 information for which special protection from public disclosure and from use for any

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

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

6 business information regarding confidential business practices, or other confidential

7 commercial information (including information implicating privacy rights of third

8 parties), information otherwise generally unavailable to the public, or which may be

9 privileged or otherwise protected from disclosure under state or federal statutes, court

10 rules, case decisions, or common law. Accordingly, to expedite the flow of

11 information, to facilitate the prompt resolution of disputes over confidentiality of

12 discovery materials, to adequately protect information the parties are entitled to keep

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

14 material in preparation for and in the conduct of trial, to address their handling at the

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

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

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

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

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

20 record of this case.

21 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

22 The parties further acknowledge, as set forth in Section 12.3, below, that this

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

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

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

26 material under seal.

27 There is a strong presumption that the public has a right of access to judicial

1 good cause must be shown to support a filing under seal. See Kamakana v. City and

2 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors

3 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics, Inc.,

4 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good

5 cause showing), and a specific showing of good cause or compelling reasons with

6 proper evidentiary support and legal justification, must be made with respect to

7 Protected Material that a party seeks to file under seal. The parties’ mere designation

8 of Disclosure or Discovery Material as CONFIDENTIAL does not—without the

9 submission of competent evidence by declaration, establishing that the material

10 sought to be filed under seal qualifies as confidential, privileged, or otherwise

11 protectable—constitute good cause.

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

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

14 sought shall be narrowly tailored to serve the specific interest to be protected. See

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

16 item or type of information, document, or thing sought to be filed or introduced under

17 seal in connection with a dispositive motion or trial, the party seeking protection must

18 articulate compelling reasons, supported by specific facts and legal justification, for

19 the requested sealing order. Again, competent evidence supporting the application to

20 file documents under seal must be provided by declaration.

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

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

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

24 the confidential, privileged, or otherwise protectable portions of the document shall

25 be filed. Any application that seeks to file documents under seal in their entirety

26 should include an explanation of why redaction is not feasible.

27 / / /

1 2. DEFINITIONS

2 2.1 Action: this pending federal lawsuit.

3 2.2 Challenging Party: a Party or Non-Party that challenges the designation

4 of information or items under this Order.

5 2.3 “CONFIDENTIAL” Information or Items: information (regardless of

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

7 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good

8 Cause Statement.

9 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

10 support staff).

11 2.5 Designating Party: a Party or Non-Party that designates information or

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

13 “CONFIDENTIAL.”

14 2.6 Disclosure or Discovery Material: all items or information, regardless

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

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

17 generated in disclosures or responses to discovery in this matter.

18 2.7 Expert: a person with specialized knowledge or experience in a matter

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

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

21 2.8 House Counsel: attorneys who are employees of a party to this Action.

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

23 counsel.

24 2.9 Non-Party: any natural person, partnership, corporation, association or

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

26 2.10 Outside Counsel of Record: attorneys who are not employees of a party

27 to this Action but are retained to represent or advise a party to this Action and have

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

2 2.11 Party: any party to this Action, including all of its officers, directors,

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

4 support staffs).

5 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

6 Discovery Material in this Action.

7 2.13 Professional Vendors: persons or entities that provide litigation support

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

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

10 and their employees and subcontractors.

11 2.14 Protected Material: any Disclosure or Discovery Material that is

12 designated as “CONFIDENTIAL.”

13 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

14 from a Producing Party.

15 3. SCOPE

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

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

18 from Protected Material; (2) all copies, excerpts, summaries, or compilations of

19 Protected Material; and (3) any testimony, conversations, or presentations by Parties

20 or their Counsel that might reveal Protected Material.

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

22 trial judge. This Order does not govern the use of Protected Material at trial.

23 4. DURATION

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

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

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

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

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

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

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

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

5 5. DESIGNATING PROTECTED MATERIAL

6 5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

8 Order must take care to limit any such designation to specific material that qualifies

9 under the appropriate standards. The Designating Party must designate for protection

10 only those parts of material, documents, items or oral or written communications that

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

12 for which protection is not warranted are not swept unjustifiably within the ambit of

13 this Order.

14 Mass, indiscriminate or routinized designations are prohibited. Designations

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

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

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

18 to sanctions.

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

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

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

22 5.2 Manner and Timing of Designations. Except as otherwise provided in

23 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

24 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

25 under this Order must be clearly so designated before the material is disclosed or

26 produced.

27 Designation in conformity with this Order requires:

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

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

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

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

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

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

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

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

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

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

11 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents

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

13 or portions thereof, qualify for protection under this Order. Then, before producing

14 the specified documents, the Producing Party must affix the “CONFIDENTIAL

15 legend” to each page that contains Protected Material. If only a portion of the material

16 on a page qualifies for protection, the Producing Party also must clearly identify the

17 protected portion(s) (e.g., by making appropriate markings in the margins).

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

19 the Disclosure or Discovery Material on the record, before the close of the deposition

20 all protected testimony.

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

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

23 exterior of the container or containers in which the information is stored the legend

24 “CONFIDENTIAL.” If only a portion or portions of the information warrants

25 protection, the Producing Party, to the extent practicable, shall identify the protected

26 portion(s).

27 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

4 Order.

5 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

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

8 Scheduling Order.

9 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

10 resolution process under Local Rule 37.1 et seq.

11 6.3 The burden of persuasion in any such challenge proceeding shall be on

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

13 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may

14 expose the Challenging Party to sanctions. Unless the Designating Party has waived

15 or withdrawn the confidentiality designation, all parties shall continue to afford the

16 material in question the level of protection to which it is entitled under the Producing

17 Party’s designation until the Court rules on the challenge.

18 7. ACCESS TO AND USE OF PROTECTED MATERIAL

19 7.1 Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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

24 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

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

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

27 authorized under this Order.

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

2 Receiving Party may disclose any information or item designated

3 “CONFIDENTIAL” only to:

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

5 as employees of said Outside Counsel of Record to whom it is reasonably necessary

6 to disclose the information for this Action;

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

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

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

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

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

12 (d) the court and its personnel;

13 (e) court reporters and their staff;

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

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

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

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

18 custodian or other person who otherwise possessed or knew the information;

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

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

21 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will

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

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

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

25 deposition testimony or exhibits to depositions that reveal Protected Material may be

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

27 permitted under this Stipulated Protective Order; and

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

2 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

3 IN OTHER LITIGATION

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

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

6 “CONFIDENTIAL,” that Party must:

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

8 include a copy of the subpoena or court order;

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

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

11 or order is subject to this Protective Order. Such notification shall include a copy of

12 this Stipulated Protective Order; and

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

14 by the Designating Party whose Protected Material may be affected.

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

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

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

18 or order issued, unless the Party has obtained the Designating Party’s permission. The

19 Designating Party shall bear the burden and expense of seeking protection in that court

20 of its confidential material and nothing in these provisions should be construed as

21 authorizing or encouraging a Receiving Party in this Action to disobey a lawful

22 directive from another court.

23 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

24 PRODUCED IN THIS LITIGATION

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

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

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

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 agreement

8 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 within

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

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

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

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

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

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

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

22 10. 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 and (d) request such person or persons to execute the “Acknowledgment and

2 Agreement to Be Bound” that is attached hereto as Exhibit A.

3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

4 PROTECTED MATERIAL

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

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

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

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

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

10 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

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

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

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

14 to the court.

15 12. MISCELLANEOUS

16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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

18 12.2 Right to Assert Other Objections. By stipulating to the entry of this

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

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

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

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

23 12.3 Filing Protected Material. A Party that seeks to file under seal any

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

25 only be filed under seal pursuant to a court order authorizing the sealing of the specific

26 Protected Material at issue. If a Party’s request to file Protected Material under seal

27 is denied by the court, then the Receiving Party may file the information in the public

1 13. FINAL DISPOSITION

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

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

4 all Protected Material to the Producing Party or destroy such material. As used in this

5 subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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

7 Material. Whether the Protected Material is returned or destroyed, the Receiving

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

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

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

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

12 abstracts, compilations, summaries or any other format reproducing or capturing any

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

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

15 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

16 reports, attorney work product, and consultant and expert work product, even if such

17 materials contain Protected Material. Any such archival copies that contain or

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

19 Section 4 (DURATION).

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

1 |} 14. VIOLATION

2 || Any violation of this Order may be punished by appropriate measures including,

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

4

5 || IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

6

7 || DATED: May 25, 2021

8

DOWNTOWN L.A. LAW GROUP

9

oe

Sarah Wilson, Esq.

12 || Attorneys for Plaintiff

13

\4 || DATED: May 25, 2021

| LEIBL, MIRETSKY & MOSELY

16

M7 Michael Mietyky

ichael Miretsky, Esq.

18 || Attorneys for Defendant

19

20

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

22

33 DATED: June 11, 2021

24 .

Raph, a, QC

HON. KOZELLA A. OLIVER

26 || United States Magistrate Judge

27

28

1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

4 |], [print or type full name], of

5 [print or type full address], declare under penalty of perjury that

6 || I have read in its entirety and understand the Stipulated Protective Order that was

7 || issued by the United States District Court for the Central District of California on

8 || [date] in the case of Rosely Zapon v. Costco Wholesale Corporation, Case No.

9 |} 2:20-cv-11415 ODW (RAOx). Lagree to comply with and to be bound by all the terms

10 || of this Stipulated Protective Order and I understand and acknowledge that failure to

11 || so comply could expose me to sanctions and punishment in the nature of contempt. |

12 || solemnly promise that I will not disclose in any manner any information or item that

13 || is subject to this Stipulated Protective Order to any person or entity except in strict

14 || compliance with the provisions of this Order.

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

16 || Central District of California for enforcing the terms of this Stipulated Protective

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

18 || hereby appoint [print or type full name] of

19 [print or type full address and

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

21 || this action or any proceedings related to enforcement of this Stipulated Protective

22 || Order.

23 || Date:

24 || City and State where sworn and signed:

25

26 || Printed name:

27

28 || Signature: