The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 NICOLE WARREN, Case No. 1:22-cv-00594-SAB
12 Plaintiff, ORDER ENTERING STIPULATED
PROTECTIVE ORDER RE CONFIDENTIAL
13 v. DOCUMENTS
14 WINCO FOODS, LLC, et al., (ECF No. 20)
15 Defendants.
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20 STIPULATED PROTECTIVE ORDER
21 1. PURPOSE
22 Disclosure and discovery activity in this matter, if necessary, are likely to involve
23 production of confidential, proprietary, or private information for which special protection from
24 public disclosure and from use for any purpose other than prosecuting this litigation may be
25 warranted. Accordingly, the Parties hereby stipulate to and petition the court to enter the
26 following Proposed Stipulated Protective Order. The parties acknowledge that this Order does not
27 confer blanket protections on all disclosures or responses to discovery and that the protection it
28 affords from public disclosure and use extends only to the limited information or items that are
1 entitled to confidential treatment under the applicable legal principles. The Parties further
2 acknowledge, as set forth in Section 12.3, below, that this Proposed Stipulated Protective Order
3 does not entitle them to file confidential information under seal; Local Rule 141 (“Sealing of
4 Documents”) sets forth the procedures that must be followed and the standards that will be
5 applied when a party seeks permission from the court to file material under seal.
6 2. DEFINITIONS
7 2.1 Challenging Party: a Party or Non-Party that challenges the designation of
8 information or items under this Order.
9 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is
10 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
11 of Civil Procedure 26(c).
12 2.3 Counsel (without qualifier): Outside Counsel of Record and In-House Counsel (as
13 well as their support staff).
14 2.4 Designating Party: a Party or Non-Party that designates information or items that it
15 produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
16 2.5 Disclosure or Discovery Material: all items or information, regardless of the
17 medium or manner in which it is generated, stored, or maintained (including, among other things,
18 testimony, transcripts, and tangible things), that are produced or generated in disclosures or
19 responses to discovery in this matter.
20 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to
21 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
22 consultant in this action.
23 2.7 In-House Counsel: attorneys who are employees of a Party to this action. In-House
24 Counsel does not include Outside Counsel of Record or any other outside counsel.
25 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal
26 entity not named as a Party to this action.
27 2.9 Outside Counsel of Record: attorneys who are not employees of a Party to this
28 action but are retained to represent or advise a Party to this action and have appeared in this
1 action on behalf of that Party or are affiliated with a law firm which has appeared on behalf of
2 that Party.
3 2.10 Party: any Party to this action, including all of its officers, directors, employees,
4 consultants, retained experts, and Outside Counsel of Record (and their support staffs).
5 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
6 Material in this action.
7 2.12 Professional Vendors: persons or entities that provide litigation support services
8 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
9 organizing, storing, or retrieving data in any form or medium) and their employees and
10 subcontractors.
11 2.13 Protected Material: any Disclosure or Discovery Material that is designated as
12 “CONFIDENTIAL.”
13 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a
14 Producing Party.
15 3. SCOPE
16 The protections conferred by this Stipulation and Order cover not only Protected Material
17 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)
18 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
19 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
20 Any use of Protected Material at trial shall be governed by a separate agreement or order.
21 4. DURATION
22 Even after final disposition of this litigation, the confidentiality obligations imposed by
23 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
24 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
25 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
26 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
27 including the time limits for filing any motions or applications for extension of time pursuant to
28 applicable law.
1 5. DESIGNATING PROTECTED MATERIAL
2 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party
3 or Non-Party that designates information or items for protection under this Order must take care
4 to limit any such designation to specific material that qualifies under the appropriate standards.
5 The Designating Party must designate for protection only those parts of material, documents,
6 items, or oral or written communications that qualify – so that other portions of the material,
7 documents, items, or communications for which protection is not warranted are not swept
8 unjustifiably within the ambit of this Order.
9 Mass, indiscriminate, or routinized designations are prohibited. Designations that are
10 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
11 unnecessarily encumber or retard the case development process or to impose unnecessary
12 expenses and burdens on other parties) expose the Designating Party to sanctions.
13 If it comes to a Designating Party’s attention that information or items that it designated
14 for protection do not qualify for protection, that Designating Party must promptly notify all other
15 Parties that it is withdrawing the mistaken designation.
16 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
17 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
18 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
19 designated before the material is disclosed or produced.
20 Designation in conformity with this Order requires:
21 (a) For information in documentary form (e.g., paper or electronic documents, but
22 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
23 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a
24 portion or portions of the material on a page qualifies for protection, the Producing Party also
25 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
26 margins).
27 A Party or Non-Party that makes original documents or materials available for inspection
28 need not designate them for protection until after the inspecting Party has indicated which
1 material it would like copied and produced. During the inspection and before the designation, all
2 of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the
3 inspecting Party has identified the documents it wants copied and produced, the Producing Party
4 must determine which documents, or portions thereof, qualify for protection under this Order.
5 Then, before producing the specified documents, the Producing Party must affix the
6 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or
7 portions of the material on a page qualifies for protection, the Producing Party also must clearly
8 identify the protected portion(s) (e.g., by making appropriate markings in the margins).
9 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the
10 Designating Party identify on the record, before the close of the deposition, hearing, or other
11 proceeding, all protected testimony.
12 (c) for information produced in some form other than documentary and for any other
13 tangible items, that the Producing Party affix in a prominent place on the exterior of the container
14 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a
15 portion or portions of the information or item warrant protection, the Producing Party, to the
16 extent practicable, shall identify the protected portion(s).
17 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
18 designate qualified information or items does not, standing alone, waive the Designating Party’s
19 right to secure protection under this Order for such material. Upon timely correction of a
20 designation, the Receiving Party must make reasonable efforts to assure that the material is
21 treated in accordance with the provisions of this Order.
22 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
23 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
24 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
25 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
26 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
27 challenge a confidentiality designation by electing not to mount a challenge promptly after the
28 original designation is disclosed.
1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
2 process by providing written notice of each designation it is challenging and describing the basis
3 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
4 notice must recite that the challenge to confidentiality is being made in accordance with this
5 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
6 good faith and must begin the process by conferring directly (in voice to voice dialogue; other
7 forms of communication are not sufficient) within 14 days of the date of service of notice. In
8 conferring, the Challenging Party must explain the basis for its belief that the confidentiality
9 designation was not proper and must give the Designating Party an opportunity to review the
10 designated material, to reconsider the circumstances, and, if no change in designation is offered,
11 to explain the basis for the chosen designation. A Challenging Party may proceed to the next
12 stage of the challenge process only if it has engaged in this meet and confer process first or
13 establishes that the Designating Party is unwilling to participate in the meet and confer process in
14 a timely manner.
15 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court
16 intervention, the Designating Party shall file and serve a motion to retain confidentiality (and in
17 compliance with Local Rule 141, if applicable) within 21 days of the initial notice of challenge or
18 within 14 days of the parties agreeing that the meet and confer process will not resolve their
19 dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration
20 affirming that the movant has complied with the meet and confer requirements imposed in the
21 preceding paragraph. Failure by the Designating Party to make such a motion including the
22 required declaration within 21 days (or 14 days, if applicable) shall automatically waive the
23 confidentiality designation for each challenged designation. In addition, the Challenging Party
24 may file a motion challenging a confidentiality designation at any time if there is good cause for
25 doing so, including a challenge to the designation of a deposition transcript or any portions
26 thereof. Any motion brought pursuant to this provision must be accompanied by a competent
27 declaration affirming that the movant has complied with the meet and confer requirements
28 imposed by the preceding paragraph.
1 The burden of persuasion in any such challenge proceeding shall be on the Designating
2 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
3 unnecessary expenses and burdens on other parties) may expose the Challenging Party to
4 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
5 file a motion to retain confidentiality as described above, all parties shall continue to afford the
6 material in question the level of protection to which it is entitled under the Producing Party’s
7 designation until the court rules on the challenge.
8 7. ACCESS TO AND USE OF PROTECTED MATERIAL
9 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or
10 produced by another Party or by a Non-Party in connection with this case only for prosecuting,
11 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
12 the categories of persons and under the conditions described in this Order. When the litigation has
13 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
14 DISPOSITION).
15 Protected Material must be stored and maintained by a Receiving Party at a location and
16 in a secure manner that ensures that access is limited to the persons authorized under this Order.
17 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
18 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
19 information or item designated “CONFIDENTIAL” only to:
20 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees
21 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information
22 for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that
23 is attached hereto as Exhibit A;
24 (b) the officers, directors, and employees (including In-House Counsel) of the Receiving
25 Party to whom disclosure is reasonably necessary for this litigation and who have signed the
26 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
27 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
28 reasonably necessary for this litigation and who have signed the “Acknowledgment and
1 Agreement to Be Bound” (Exhibit A);
2 (d) the court and its personnel;
3 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and
4 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
5 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
6 (f) during their depositions, witnesses in the action to whom disclosure is reasonably
7 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
8 unless otherwise agreed by the Designating Party or ordered by the court. Pages of
9 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
10 separately bound by the court reporter and may not be disclosed to anyone except as permitted
11 under this Stipulated Protective Order.
12 (g) the author or recipient of a document containing the information or a custodian or
13 other person who otherwise possessed or knew the information.
14 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
15 IN OTHER LITIGATION
16 If a Party is served with a subpoena or a court order issued in other litigation that compels
17 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
18 must:
19 (a) promptly notify in writing the Designating Party. Such notification shall include a
20 copy of the subpoena or court order;
21 (b) promptly notify in writing the party who caused the subpoena or order to issue in the
22 other litigation that some or all of the material covered by the subpoena or order is subject to this
23 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
24 (c) cooperate with respect to all reasonable procedures sought to be pursued by the
25 Designating Party whose Protected Material may be affected.
26 If the Designating Party timely seeks a protective order, the Party served with the
27 subpoena or court order shall not produce any information designated in this action as
28 “CONFIDENTIAL” before a determination by the court from which the subpoena or order
1 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party
2 shall bear the burden and expense of seeking protection in that court of its confidential material –
3 and nothing in these provisions should be construed as authorizing or encouraging a Receiving
4 Party in this action to disobey a lawful directive from another court.
5 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
6 PRODUCED IN THIS LITIGATION
7 (a) The terms of this Order are applicable to information produced by a Non-Party in this
8 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
9 connection with this litigation is protected by the remedies and relief provided by this Order.
10 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
11 additional protections.
12 (b) In the event that a Party is required, by a valid discovery request, to produce a Non-
13 Party’s confidential information in its possession, and the Party is subject to an agreement with
14 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
15 (1) promptly notify in writing the Requesting Party and the Non-Party that some or
16 all of the information requested is subject to a confidentiality agreement with a Non-Party;
17 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order
18 in this litigation, the relevant discovery request(s), and a reasonably specific description of the
19 information requested; and
20 (3) make the information requested available for inspection by the Non-Party.
21 (c) If the Non-Party fails to object or seek a protective order from this court within 14
22 days of receiving the notice and accompanying information, the Receiving Party may produce the
23 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
24 seeks a protective order, the Receiving Party shall not produce any information in its possession
25 or control that is subject to the confidentiality agreement with the Non-Party before a
26 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
27 burden and expense of seeking protection in this court of its Protected Material.
28 ///
1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
3 Material to any person or in any circumstance not authorized under this Stipulated Protective
4 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
5 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
6 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
7 made of all the terms of this Order, and (d) request such person or persons to execute the
8 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
9 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
10 PROTECTED MATERIAL
11 When a Producing Party gives notice to Receiving Parties that certain inadvertently
12 produced material is subject to a claim of privilege or other protection, the obligations of the
13 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
14 provision is not intended to modify whatever procedure may be established in an e-discovery
15 order that provides for production without prior privilege review. Pursuant to Federal Rule of
16 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
17 communication or information covered by the attorney-
18 client privilege or work product protection, the parties may incorporate their agreement in the
19 stipulated protective order submitted to the court.
20 12. MISCELLANEOUS
21 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to
22 seek its modification by the court in the future.
23 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective
24 Order no Party waives any right it otherwise would have to object to disclosing or producing any
25 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
26 Party waives any right to object on any ground to use in evidence of any of the material covered
27 by this Protective Order.
28 ///
1 12.3 Filing Protected Material. Without written permission from the Designating Party
2 or a court order secured after appropriate notice to all interested persons, a Party may not file in
3 the public record in this action any Protected Material. Protected Material may only be filed under
4 seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. A
5 Party that seeks to file under seal any Protected Material must comply with Local Rule 141. In
6 accordance with the court’s standing order(s), if a Receiving Party plans to make a filing that
7 includes material the Designating Party has identified as confidential and potentially subject to
8 sealing, the Receiving Party shall provide the Designating Party with sufficient notice in advance
9 of filing to allow for the seeking of an order of sealing or redaction from the court.
10 13. FINAL DISPOSITION
11 Within 60 days after the final disposition of this action, as defined in paragraph 4, each
12 Receiving Party must return all Protected Material to the Producing Party or destroy such
13 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
14 compilations, summaries, and any other format reproducing or capturing any of the Protected
15 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
16 submit a written certification to the Producing Party (and, if not the same person or entity, to the
17 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all
18 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
19 not retained any copies, abstracts, compilations, summaries or any other format reproducing or
20 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
21 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
22 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
23 product, and consultant and expert work product, even if such materials contain Protected
24 Material. Any such archival copies that contain or constitute Protected Material remain subject to
25 this Protective Order as set forth in Section 4 (DURATION).
26 ///
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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 penalty of perjury that I have read in its entirety and
5 understand the Stipulated Protective Order that was issued by the United States District Court for
6 the Eastern District of California on [date] in the case of Nicole Warren v. WinCo Holdings, Inc.,
7 et al., Case No. 1:22-cv-00594-SAB. I agree to comply with and to be bound by all the terms of
8 this Stipulated Protective Order and I understand and acknowledge that failure to so comply could
9 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will
10 not disclose in any manner any information or item that is subject to this Stipulated Protective
11 Order to any person or entity except in strict compliance with the provisions of this Order.
12 I further agree to submit to the jurisdiction of the United States District Court for the
13 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective
14 Order, even if such enforcement proceedings occur after termination of this action.
15 I hereby appoint __________________________ [print or type full name] of
16 _______________________________________ [print or type full address and telephone
17 number] as my California agent for service of process in connection with this action or any
18 proceedings related to enforcement of this Stipulated Protective Order.
19
20 Date: _________________________________
21 City and State where sworn and signed: _________________________________
22 Printed name: ______________________________
23 Signature: __________________________________
24 ///
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1 COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER
2 Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY
3 | ORDERED that:
4 1. The above stipulated protective order is ENTERED;
5 2. The provisions of the parties’ stipulation and this protective order shall remain in
6 effect until further order of the Court;
7 3. The parties are advised that pursuant to the Local Rules of the United States
8 District Court, Eastern District of California, any documents which are to be filed
9 under seal will require a written request which complies with Local Rule 141;
10 4. The party making a request to file documents under seal shall be required to show
11 either good cause or compelling reasons to seal the documents, depending on the
12 type of filing, Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir.
13 2009); Ctr. for Auto Safety v. Chrysler Grp... LLC, 809 F.3d 1092, 1101 (9th Cir.
14 2016); and
15 5. If a party’s request to file Protected Material under seal is denied by the Court,
16 then the previously filed material shall be immediately accepted by the court and
17 become information in the public record and the information will be deemed filed
18 as of the date that the request to file the Protected Information under seal was
19 made.
20
IT IS SO ORDERED. DAM Le
22 | Dated: _October 11, 2022 __ Of
33 UNITED STATES MAGISTRATE JUDGE
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