The opinion
1 JOSHUA S. GOODMAN – State Bar #116576
ZACHARY S. TOLSON – State Bar #242824
2 ANGELIQUE HERNANDEZ – State Bar #349156
GOODMAN NEUMAN HAMILTON LLP
3 100 Bush Street, Suite 1800
San Francisco, California 94104
4 Telephone: (415) 705-0400
Facsimile: (415) 705-0411
5 Emails: jgoodman@gnhllp.com; ztolson@gnhllp.com; ahernandez@gnhllp.com
6 Attorneys for Defendant
HOME DEPOT U.S.A., INC.
7
SARK OHANIAN – State Bar # 208905
8 EDWARD HOVANNISIAN – State Bar # 340968
CARPENTER & ZUCKEMAN
9 8827 West Olympic Boulevard
Beverly Hills, CA 90211-3613
10 Telephone: (310) 273-1230
Emails: sark@cz.law; ehovannisian@cz.law
11
12 Attorneys for Plaintiff, ANNE ARTINO
13
UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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16
ANNE ARTINO, an Individual, Case No. 1:22-CV-01588-TLN-KJN
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Plaintiff, STIPULATED PROTECTIVE ORDER
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vs.
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HOME DEPOT USA, INC., a
20 Delaware Corporation; KING OF
CENTRAL VALLEY II, L.P., a
21 California Limited Partnership; THE
VIGORO CORPORATION, a
22 Delaware Corporation; and DOES 1 to
DOES 50, Inclusive,
23
Defendants.
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25 1. PURPOSES AND LIMITATIONS
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1 warranted. More specifically, this will include the production of HOME DEPOT U.S.A.,
2 INC.’s (hereinafter “Home Depot”) internal policies and procedures. Home Depot spends
3 significant time developing its policies and procedures and considers them proprietary and
4 trade secret and not intended for dissemination to the public. Accordingly, the parties
5 hereby stipulate to and petition the court to enter the following Stipulated Protective
6 Order. The parties acknowledge that this Order does not confer blanket protections on all
7 disclosures or responses to discovery and that the protection it affords from public
8 disclosure and use extends only to the limited information or items that are entitled to
9 confidential treatment under the applicable legal principles. The parties further
10 acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order
11 does not entitle them to file confidential information under seal; Civil Local Rules 140,
12 141 and 141.1 set forth the procedures that must be followed and the standards that will be
13 applied when a party seeks permission from the court to file material under seal.
14 2. DEFINITIONS
15 2.1 Challenging Party: a Party or Non-Party that challenges the designation of
16 information or items under this Order.
17 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it
18 is generated, stored or maintained) or tangible things that qualify for protection under
19 Federal Rule of Civil Procedure 26(c).
20 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel
21 (as well as their support staff).
22 2.4 Designating Party: a Party or Non-Party that designates information or
23 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
24 2.5 Disclosure or Discovery Material: all items or information, regardless of the
25 medium or manner in which it is generated, stored, or maintained (including, among other
G No eo ud mm aa nn 26 things, testimony, transcripts, and tangible things), that are produced or generated in
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1 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
2 expert witness or as a consultant in this action.
3 2.7 House Counsel: attorneys who are employees of a party to this action.
4 House Counsel does not include Outside Counsel of Record or any other outside counsel.
5 2.8 Non-Party: any natural person, partnership, corporation, association, or
6 other legal entity not named as a Party to this action.
7 2.9 Outside Counsel of Record: attorneys who are not employees of a party to
8 this action but are retained to represent or advise a party to this action and have appeared
9 in this action on behalf of that party or are affiliated with a law firm which has appeared
10 on behalf of that party.
11 2.10 Party: any party to this action, including all of its officers, directors,
12 employees, consultants, retained experts, and Outside Counsel of Record (and their
13 support staffs).
14 2.11 Producing Party: a Party or Non-Party that produces Disclosure or
15 Discovery Material in this action.
16 2.12 Professional Vendors: persons or entities that provide litigation support
17 services (e.g., photocopying, videotaping, translating, preparing exhibits or
18 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
19 their employees and subcontractors.
20 2.13 Protected Material: any Disclosure or Discovery Material that is designated
21 as “CONFIDENTIAL.”
22 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material
23 from a Producing Party.
24 3. SCOPE
25 The protections conferred by this Stipulation and Order cover not only Protected
G No eo ud mm aa nn 26 Material (as defined above), but also (1) any information copied or extracted from
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1 Counsel that might reveal Protected Material. However, the protections conferred by this
2 Stipulation and Order do not cover the following information: (a) any information that is
3 in the public domain at the time of disclosure to a Receiving Party or becomes part of the
4 public domain after its disclosure to a Receiving Party as a result of publication not
5 involving a violation of this Order, including becoming part of the public record through
6 trial or otherwise; and (b) any information known to the Receiving Party prior to the
7 disclosure or obtained by the Receiving Party after the disclosure from a source who
8 obtained the information lawfully and under no obligation of confidentiality to the
9 Designating Party. Any use of Protected Material at trial shall be governed by a separate
10 agreement or order.
11 4. DURATION
12 Even after final disposition of this litigation, the confidentiality obligations
13 imposed by this Order shall remain in effect until a Designating Party agrees otherwise in
14 writing or a court order otherwise directs. Final disposition shall be deemed to be the later
15 of (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2)
16 final judgment herein after the completion and exhaustion of all appeals, rehearings,
17 remands, trials, or reviews of this action, including the time limits for filing any motions
18 or applications for extension of time pursuant to applicable law.
19 5. DESIGNATING PROTECTED MATERIAL
20 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
21 Party or Non-Party that designates information or items for protection under this Order
22 must take care to limit any such designation to specific material that qualifies under the
23 appropriate standards. The Designating Party must designate for protection only those
24 parts of material, documents, items, or oral or written communications that qualify – so
25 that other portions of the material, documents, items, or communications for which
G No eo ud mm aa nn 26 protection is not warranted are not swept unjustifiably within the ambit of this Order.
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1 to unnecessarily encumber or delay the case development process or to impose
2 unnecessary expenses and burdens on other parties) expose the Designating Party to
3 sanctions.
4 If it comes to a Designating Party’s attention that information or items that it
5 designated for protection do not qualify for protection, that Designating Party must
6 promptly notify all other Parties that it is withdrawing the mistaken designation.
7 5.2 Manner and Timing of Designations. Except as otherwise provided in this
8 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
9 ordered, Disclosure or Discovery Material that qualifies for protection under this Order
10 must be clearly so designated before the material is disclosed or produced.
11 Designation in conformity with this Order requires:
12 (a) for information in documentary form (e.g., paper or electronic documents, but
13 excluding transcripts of depositions or other pretrial or trial proceedings), that the
14 Producing Party affix the legend “CONFIDENTIAL” to each page that contains protected
15 material. If only a portion or portions of the material on a page qualifies for protection, the
16 Producing Party also must clearly identify the protected portion(s) (e.g., by making
17 appropriate markings in the margins). A Party or Non-Party that makes original
18 documents or materials available for inspection need not designate them for protection
19 until after the inspecting Party has indicated which material it would like copied and
20 produced. During the inspection and before the designation, all of the material made
21 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party
22 has identified the documents it wants copied and produced, the Producing Party must
23 determine which documents, or portions thereof, qualify for protection under this Order.
24 Then, before producing the specified documents, the Producing Party must affix the
25 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a
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1 (b) for testimony given in deposition or in other pretrial or trial proceedings, that
2 the Designating Party identify on the record, before the close of the deposition, hearing, or
3 other proceeding, all protected testimony.
4 (c) for information produced in some form other than documentary and for any
5 other tangible items, that the Producing Party affix in a prominent place on the exterior of
6 the container or containers in which the information or item is stored the legend
7 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant
8 protection, the Producing Party, to the extent practicable, shall identify the protected
9 portion(s).
10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
11 to designate qualified information or items does not, standing alone, waive the
12 Designating Party’s right to secure protection under this Order for such material. Upon
13 timely correction of a designation, the Receiving Party must make reasonable efforts to
14 assure that the material is treated in accordance with the provisions of this Order.
15 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
16 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation
17 of confidentiality at any time. Unless a prompt challenge to a Designating Party’s
18 confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
19 unnecessary economic burdens, or a significant disruption or delay of the litigation, a
20 Party does not waive its right to challenge a confidentiality designation by electing not to
21 mount a challenge promptly after the original designation is disclosed.
22 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
23 process by providing written notice of each designation it is challenging and describing
24 the basis for each challenge. To avoid ambiguity as to whether a challenge has been made,
25 the written notice must recite that the challenge to confidentiality is being made in
G No eo ud mm aa nn 26 accordance with this specific paragraph of the Protective Order. The parties shall attempt
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1 days of the date of service of notice. In conferring, the Challenging Party must explain the
2 basis for its belief that the confidentiality designation was not proper and must give the
3 Designating Party an opportunity to review the designated material, to reconsider the
4 circumstances, and, if no change in designation is offered, to explain the basis for the
5 chosen designation. A Challenging Party may proceed to the next stage of the challenge
6 process only if it has engaged in this meet and confer process first or establishes that the
7 Designating Party is unwilling to participate in the meet and confer process in a timely
8 manner.
9 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court
10 intervention, the Designating Party shall file and serve a motion to retain confidentiality
11 under Civil Local Rules 140, 141, and 141.1 (and in compliance with Civil Local Rule
12 230, if applicable) within 21 days of the initial notice of challenge or within 14 days of the
13 parties agreeing that the meet and confer process will not resolve their dispute, whichever
14 is earlier. Each such motion must be accompanied by a competent declaration affirming
15 that the movant has complied with the meet and confer requirements imposed in the
16 preceding paragraph. Failure by the Designating Party to make such a motion including
17 the required declaration within 21 days (or 14 days, if applicable) shall automatically
18 waive the confidentiality designation for each challenged designation. In addition, the
19 Challenging Party may file a motion challenging a confidentiality designation at any time
20 if there is good cause for doing so, including a challenge to the designation of a deposition
21 transcript or any portions thereof. Any motion brought pursuant to this provision must be
22 accompanied by a competent declaration affirming that the movant has complied with the
23 meet and confer requirements imposed by the preceding paragraph.
24 The burden of persuasion in any such challenge proceeding shall be on the
25 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to
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1 above, all parties shall continue to afford the material in question the level of protection to
2 which it is entitled under the Producing Party’s designation until the court rules on the
3 challenge.
4 7. ACCESS TO AND USE OF PROTECTED MATERIAL
5 7.1 Basic Principles. A Receiving Party may use Protected Material that is
6 disclosed or produced by another Party or by a Non-Party in connection with this case
7 only for prosecuting, defending, or attempting to settle this litigation. Such Protected
8 Material may be disclosed only to the categories of persons and under the conditions
9 described in this Order. When the litigation has been terminated, a Receiving Party must
10 comply with the provisions of section 13 below (FINAL DISPOSITION).
11 Protected Material must be stored and maintained by a Receiving Party at a location and
12 in a secure manner that ensures that access is limited to the persons authorized under this
13 Order.
14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
15 ordered by the court or permitted in writing by the Designating Party, a Receiving Party
16 may disclose any information or item designated “CONFIDENTIAL” only to:
17 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
18 employees of said Outside Counsel of Record to whom it is reasonably necessary to
19 disclose the information for this litigation and who have signed the “Acknowledgment and
20 Agreement to Be Bound” that is attached hereto as Exhibit A;
21 (b) the officers, directors, and employees (including House Counsel) of the
22 Receiving Party to whom disclosure is reasonably necessary for this litigation and who
23 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
24 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
25 reasonably necessary for this litigation and who have signed the “Acknowledgment and
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1 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this
2 litigation and who have signed the “Acknowledgment and Agreement to Be Bound”
3 (Exhibit A);
4 (f) during their depositions, witnesses in the action to whom disclosure is
5 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
6 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the
7 court. Pages of transcribed deposition testimony or exhibits to depositions that reveal
8 Protected Material must be separately bound by the court reporter and may not be
9 disclosed to anyone except as permitted under this Stipulated Protective Order.
10 (g) the author or recipient of a document containing the information or a custodian
11 or other person who otherwise possessed or knew the information.
12 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
13 OTHER LITIGATION
14 If a Party is served with a subpoena or a court order issued in other litigation that
15 compels disclosure of any information or items designated in this action as
16 “CONFIDENTIAL,” that Party must:
17 (a) promptly notify in writing the Designating Party. Such notification shall
18 include a copy of the subpoena or court order;
19 (b) promptly notify in writing the party who caused the subpoena or order to issue
20 in the other litigation that some or all of the material covered by the subpoena or order is
21 subject to this Protective Order. Such notification shall include a copy of this Stipulated
22 Protective Order; and
23 (c) cooperate with respect to all reasonable procedures sought to be pursued by the
24 Designating Party whose Protected Material may be affected.
25 If the Designating Party timely seeks a protective order, the Party served with the
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1 Designating Party shall bear the burden and expense of seeking protection in that court of
2 its confidential material – and nothing in these provisions should be construed as
3 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive
4 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
8 in this action and designated as “CONFIDENTIAL.” Such information produced by Non-
9 Parties in connection with this litigation is protected by the remedies and relief provided
10 by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party
11 from seeking additional protections.
12 (b) In the event that a Party is required, by a valid discovery request, to produce a
13 Non-Party’s confidential information in its possession, and the Party is subject to an
14 agreement with the Non-Party not to produce the Non-Party’s confidential information,
15 then the Party shall:
16 (1) promptly notify in writing the Requesting Party and the Non-Party that some or
17 all of the information requested is subject to a confidentiality agreement with a Non-Party;
18 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order
19 in this litigation, the relevant discovery request(s), and a reasonably specific description of
20 the information requested; and
21 (3) make the information requested available for inspection by the Non-Party.
22 (c) If the Non-Party fails to object or seek a protective order from this court within
23 14 days of receiving the notice and accompanying information, the Receiving Party may
24 produce the Non-Party’s confidential information responsive to the discovery request. If
25 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any
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1 court of its Protected Material.
2 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
3 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
4 Protected Material to any person or in any circumstance not authorized under this
5 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
6 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all
7 unauthorized copies of the Protected Material, (c) inform the person or persons to whom
8 unauthorized disclosures were made of all the terms of this Order, and (d) request such
9 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is
10 attached hereto as Exhibit A.
11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
12 PROTECTED MATERIAL
13 When a Producing Party gives notice to Receiving Parties that certain inadvertently
14 produced material is subject to a claim of privilege or other protection, the obligations of
15 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
16 This provision is not intended to modify whatever procedure may be established in an e-
17 discovery order that provides for production without prior privilege review. Pursuant to
18 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the
19 effect of disclosure of a communication or information covered by the attorney-client
20 privilege or work product protection, the parties may incorporate their agreement in the
21 stipulated protective order submitted to the court.
22 12. MISCELLANEOUS
23 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
24 person to seek its modification by the court in the future.
25 12.2 Right to Assert Other Objections. By stipulating to the entry of this
G No eo ud mm aa nn 26 Protective Order no Party waives any right it otherwise would have to object to disclosing
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1 evidence of any of the material covered by this Protective Order.
2 12.3 Filing Protected Material. Without a court order a Party may not file in the
3 public record in this action any Protected Material. A Party that seeks to file under seal
4 any Protected Material must comply with Civil Local Rules 140, 141 and 141.1.
5 Protected Material may only be filed under seal pursuant to a court order authorizing the
6 sealing of the specific Protected Material at issue. If a Receiving Party’s request to file
7 Protected Material under seal pursuant to Civil Local Rules 140, 141 and 141.1 is denied
8 by the court, then the Receiving Party may file the information in the public record
9 pursuant to Civil Local Rules 140, 141 and 141.1, unless otherwise instructed by the court.
10 13. FINAL DISPOSITION
11 Within 60 days after the final disposition of this action, as defined in paragraph 4,
12 each Receiving Party must return all Protected Material to the Producing Party or destroy
13 such material. As used in this subdivision, “all Protected Material” includes all copies,
14 abstracts, compilations, summaries, and any other format reproducing or capturing any of
15 the Protected Material. Whether the Protected Material is returned or destroyed, the
16 Receiving Party must submit a written certification to the Producing Party (and, if not the
17 same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
18 (by category, where appropriate) all the Protected Material that was returned or destroyed
19 and (2) affirms that the Receiving Party has not retained any copies, abstracts,
20 compilations, summaries or any other format reproducing or capturing any of the
21 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
22 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
23 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
24 work product, and consultant and expert work product, even if such materials contain
25 Protected Material. Any such archival copies that contain or constitute Protected Material
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1 ECF CERTIFICATION
2 I, Edward Hovannisian, certify that the content of this document (Stipulated
3 || Protective Order) is acceptable to the undersigned counsel of record to affix my
4 || electronic signature hereto.
DATED: March 8, 2024 CARPENTER & ZUCKERMAN
7
By:
8 EDWARD HOVANNISIAN
SARK OHANIAN
9 Attorneys for Plaintiff
ANNE ARTINO
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11
12 ECF CERTIFICATION
B I, Angelique Hernandez, certify that the content of this document (Stipulated
14 Protective Order) is acceptable to the undersigned counsel of record to affix my
15 electronic signature hereto.
16|| DATED: February 26, 2024 GOODMAN NEUMAN HAMILTON LLP
17
18 :
By: or
19 JOSHUA S$. GOODMAN
ZACHARY S. TOLSON
20 ANGELIQUE HERNANDEZ
Attorneys for Defendants
21 HOME DEPOT U.S.A., INC.
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LLP
705-0400 28
472,
ORDER
2 The court has reviewed the parties’ stipulated protective order. (See ECF No. 23). The
3 stipulation comports with the relevant authorities and the court’s applicable local rule. See L.R.
|| 141.1. The court APPROVES the protective order, subject to the following clarification. The
5 || Local Rules state that once an action is closed, “unless otherwise ordered, the court will not
6 Il retain jurisdiction over enforcement of the terms of any protective order filed in that
action.” L.R. 141.1(f); see also, e.g., MD Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778
8 (E.D. Cal., Feb. 03, 2017) (noting that courts in the district generally do not agree to retain
9 jurisdiction for disputes concerning protective orders after closure of the case). Thus, the court
10 || will not retain jurisdiction over this protective order once the case is closed.
1 ge □□ oe
Dated: March 8, 2024 Carp ft lz —
CAROLYN K. DELANEY
13 UNITED STATES MAGISTRATE JUDGE
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