Trisha Teperson v. Nogin, Inc.

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 TRISHA TEPERSON, on behalf of Case No. 8:23-cv-00281

herself and all others similarly situated,

11

Plaintiff,

12 PROTECTIVE ORDER

v.

13

NOGIN, INC., a Delaware Corporation,

14 and DOES 1 – 50, inclusive,

15 Defendants.

16

17 I. PURPOSES AND LIMITATIONS

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

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

20 disclosure and from use for any purpose other than prosecuting this litigation may

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

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

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

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

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

26 under the applicable legal principles. The parties further acknowledge, as set forth

27 in Section XIII(C), below, that this Stipulated Protective Order does not entitle them

1 to file confidential information under seal; Civil Local Rule 79-5 sets forth the

2 procedures that must be followed and the standards that will be applied when a party

3 seeks permission from the Court to file material under seal.

4 II. GOOD CAUSE STATEMENT

5 A. This action is likely to involve trade secrets, customer and pricing lists

6 and other valuable research, development, commercial, financial, technical and/or

7 proprietary information for which special protection from public disclosure and

8 from use for any purpose other than prosecution of this action is warranted. Such

9 confidential and proprietary materials and information consist of, among other

10 things, confidential business or financial information, information regarding

11 confidential business practices, or other confidential research, development, or

12 commercial information (including information implicating privacy rights of third

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

14 be privileged or otherwise protected from disclosure under state or federal statutes,

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

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

17 discovery materials, to adequately protect information the parties are entitled to

18 keep confidential, to ensure that the parties are permitted reasonable necessary uses

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

20 handling at the end of the litigation, and serve the ends of justice, a protective order

21 for such information is justified in this matter. It is the intent of the parties that

22 information will not be designated as confidential for tactical reasons and that

23 nothing be so designated without a good faith belief that it has been maintained in

24 a confidential, non-public manner, and there is good cause why it should not be part

25 of the public record of this case.

26 III. DEFINITIONS

27 A. Action: Trisha Teperson v. Nogin, Inc. et al, Case No. 8:23-CV-00281.

1 B. Challenging Party: A Party or Non-Party that challenges the

2 designation of information or items under this Order.

3 C. “CONFIDENTIAL” Information or Items: Information (regardless of

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

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

6 the Good Cause Statement.

7 D. Counsel: Outside Counsel of Record and House Counsel (as well as

8 their support staff).

9 E. Designating Party: A Party or Non-Party that designates information

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

11 “CONFIDENTIAL.”

12 F. Disclosure or Discovery Material: All items or information, regardless

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

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

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

16 G. Expert: A person with specialized knowledge or experience in a matter

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

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

19 H. House Counsel: Attorneys who are employees of a party to this

20 Action. House Counsel does not include Outside Counsel of Record or any other

21 outside counsel.

22 I. Non-Party: Any natural person, partnership, corporation, association,

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

24 J. Outside Counsel of Record: Attorneys who are not employees of a

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

26 have appeared in this Action on behalf of that party or are affiliated with a law firm

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

1 K. Party: Any party to this Action, including all of its officers, directors,

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

3 support staffs).

4 L. Producing Party: A Party or Non-Party that produces Disclosure or

5 Discovery Material in this Action.

6 M. Professional Vendors: Persons or entities that provide litigation

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

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

9 and their employees and subcontractors.

10 N. Protected Material: Any Disclosure or Discovery Material that is

11 designated as “CONFIDENTIAL.”

12 O. Receiving Party: A Party that receives Disclosure or Discovery

13 Material from a Producing Party.

14 IV. SCOPE

15 A. The protections conferred by this Stipulation and Order cover not only

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

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

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

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

20 B. Any use of Protected Material at trial shall be governed by the orders

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

22 V. DURATION

23 A. Once a case proceeds to trial, all of the information that was designated

24 as confidential or maintained pursuant to this Protective Order becomes public and

25 will be presumptively available to all members of the public, including the press,

26 unless compelling reasons supported by specific factual findings to proceed

27 otherwise are made to the trial judge in advance of the trial. See Kamakana v. City

1 and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing

2 “good cause” showing for sealing documents produced in discovery from

3 “compelling reasons” standard when merits-related documents are part of court

4 record). Accordingly, the terms of this Protective Order do not extend beyond the

5 commencement of the trial.

6 VI. DESIGNATING PROTECTED MATERIAL

7 A. Exercise of Restraint and Care in Designating Material for Protection

8 1. Each Party or Non-Party that designates information or items

9 for protection under this Order must take care to limit any such designation

10 to specific material that qualifies under the appropriate standards. The

11 Designating Party must designate for protection only those parts of material,

12 documents, items, or oral or written communications that qualify so that other

13 portions of the material, documents, items, or communications for which

14 protection is not warranted are not swept unjustifiably within the ambit of

15 this Order.

16 2. Mass, indiscriminate, or routinized designations are prohibited.

17 Designations that are shown to be clearly unjustified or that have been made

18 for an improper purpose (e.g., to unnecessarily encumber the case

19 development process or to impose unnecessary expenses and burdens on

20 other parties) may expose the Designating Party to sanctions.

21 3. If it comes to a Designating Party’s attention that information or

22 items that it designated for protection do not qualify for protection, that

23 Designating Party must promptly notify all other Parties that it is

24 withdrawing the inapplicable designation.

25 B. Manner and Timing of Designations

26 1. Except as otherwise provided in this Order (see, e.g.,

27 Section B(2)(b) below), or as otherwise stipulated or ordered, Disclosure or

1 Discovery Material that qualifies for protection under this Order must be

2 clearly so designated before the material is disclosed or produced.

3 2. Designation in conformity with this Order requires the

4 following:

5 a. For information in documentary form (e.g., paper or

6 electronic documents, but excluding transcripts of depositions or other

7 pretrial or trial proceedings), that the Producing Party affix at a

8 minimum, the legend “CONFIDENTIAL” (hereinafter

9 “CONFIDENTIAL legend”), to each page that contains protected

10 material. If only a portion or portions of the material on a page

11 qualifies for protection, the Producing Party also must clearly identify

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

13 margins).

14 b. A Party or Non-Party that makes original documents

15 available for inspection need not designate them for protection until

16 after the inspecting Party has indicated which documents it would like

17 copied and produced. During the inspection and before the

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

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

20 the documents it wants copied and produced, the Producing Party must

21 determine which documents, or portions thereof, qualify for protection

22 under this Order. Then, before producing the specified documents, the

23 Producing Party must affix the “CONFIDENTIAL legend” to each

24 page that contains Protected Material. If only a portion or portions of

25 the material on a page qualifies for protection, the Producing Party also

26 must clearly identify the protected portion(s) (e.g., by making

27 appropriate markings in the margins).

1 c. For testimony given in depositions, that the Designating

2 Party identify the Disclosure or Discovery Material on the record,

3 before the close of the deposition all protected testimony.

4 d. For information produced in form other than document

5 and for any other tangible items, that the Producing Party affix in a

6 prominent place on the exterior of the container or containers in which

7 the information is stored the legend “CONFIDENTIAL.” If only a

8 portion or portions of the information warrants protection, the

9 Producing Party, to the extent practicable, shall identify the protected

10 portion(s).

11 C. Inadvertent Failure to Designate

12 1. If timely corrected, an inadvertent failure to designate qualified

13 information or items does not, standing alone, waive the Designating Party’s

14 right to secure protection under this Order for such material. Upon timely

15 correction of a designation, the Receiving Party must make reasonable efforts

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

17 Order.

18 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS

19 A. Timing of Challenges

20 1. Any party or Non-Party may challenge a designation of

21 confidentiality at any time that is consistent with the Court’s Scheduling Order.

22 B. Meet and Confer

23 1. The Challenging Party shall initiate the dispute resolution

24 process under Local Rule 37.1 et seq.

25 C. The burden of persuasion in any such challenge proceeding shall be on

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

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

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

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

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

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

5 challenge.

6 VIII. ACCESS TO AND USE OF PROTECTED MATERIAL

7 A. Basic Principles

8 1. A Receiving Party may use Protected Material that is disclosed

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

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

11 Such Protected Material may be disclosed only to the categories of persons

12 and under the conditions described in this Order. When the Action has been

13 terminated, a Receiving Party must comply with the provisions of

14 Section XIV below.

15 2. Protected Material must be stored and maintained by a

16 Receiving Party at a location and in a secure manner that ensures that access

17 is limited to the persons authorized under this Order.

18 B. Disclosure of “CONFIDENTIAL” Information or Items

19 1. Unless otherwise ordered by the Court or permitted in writing

20 by the Designating Party, a Receiving Party may disclose any information or

21 item designated “CONFIDENTIAL” only to:

22 a. The Receiving Party’s Outside Counsel of Record in this

23 Action, as well as employees of said Outside Counsel of Record to whom

24 it is reasonably necessary to disclose the information for this Action;

25 b. The officers, directors, and employees (including House

26 Counsel) of the Receiving Party to whom disclosure is reasonably

27 necessary for this Action;

1 c. Experts (as defined in this Order) of the Receiving Party

2 to whom disclosure is reasonably necessary for this Action and who

3 have signed the “Acknowledgment and Agreement to Be Bound”

4 (Exhibit A);

5 d. The Court and its personnel;

6 e. Court reporters and their staff;

7 f. Professional jury or trial consultants, mock jurors, and

8 Professional Vendors to whom disclosure is reasonably necessary for

9 this Action and who have signed the “Acknowledgment and

10 Agreement to be Bound” attached as Exhibit A hereto;

11 g. The author or recipient of a document containing the

12 information or a custodian or other person who otherwise possessed or

13 knew the information;

14 h. During their depositions, witnesses, and attorneys for

15 witnesses, in the Action to whom disclosure is reasonably necessary

16 provided: (i) the deposing party requests that the witness sign the

17 “Acknowledgment and Agreement to Be Bound;” and (ii) they will not

18 be permitted to keep any confidential information unless they sign the

19 “Acknowledgment and Agreement to Be Bound,” unless otherwise

20 agreed by the Designating Party or ordered by the Court. Pages of

21 transcribed deposition testimony or exhibits to depositions that reveal

22 Protected Material may be separately bound by the court reporter and

23 may not be disclosed to anyone except as permitted under this

24 Stipulated Protective Order; and

25 i. Any mediator or settlement officer, and their supporting

26 personnel, mutually agreed upon by any of the parties engaged in

27 settlement discussions.

1 IX. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

2 IN OTHER LITIGATION

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

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

5 Action as “CONFIDENTIAL,” that Party must:

6 1. Promptly notify in writing the Designating Party. Such

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

8 2. Promptly notify in writing the party who caused the subpoena

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

10 by the subpoena or order is subject to this Protective Order. Such notification

11 shall include a copy of this Stipulated Protective Order; and

12 3. Cooperate with respect to all reasonable procedures sought to be

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

14 B. If the Designating Party timely seeks a protective order, the Party

15 served with the subpoena or court order shall not produce any information

16 designated in this action as “CONFIDENTIAL” before a determination by the

17 Court from which the subpoena or order issued, unless the Party has obtained the

18 Designating Party’s permission. The Designating Party shall bear the burden and

19 expense of seeking protection in that court of its confidential material and nothing

20 in these provisions should be construed as authorizing or encouraging a Receiving

21 Party in this Action to disobey a lawful directive from another court.

22 X. 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

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

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

3 B. In the event that a Party is required, by a valid discovery request, to

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

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

6 confidential information, then the Party shall:

7 1. Promptly notify in writing the Requesting Party and the Non-

8 Party that some or all of the information requested is subject to a

9 confidentiality agreement with a Non-Party;

10 2. Promptly provide the Non-Party with a copy of the Stipulated

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

12 reasonably specific description of the information requested; and

13 3. Make the information requested available for inspection by the

14 Non-Party, if requested.

15 C. If the Non-Party fails to seek a protective order from this court within

16 14 days of receiving the notice and accompanying information, the Receiving Party

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

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

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

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

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

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

23 XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

24 A. If a Receiving Party learns that, by inadvertence or otherwise, it has

25 disclosed Protected Material to any person or in any circumstance not authorized

26 under this Stipulated Protective Order, the Receiving Party must immediately

27 (1) notify in writing the Designating Party of the unauthorized disclosures, (2) use

1 its best efforts to retrieve all unauthorized copies of the Protected Material,

2 (3) inform the person or persons to whom unauthorized disclosures were made of

3 all the terms of this Order, and (4) request such person or persons to execute the

4 “Acknowledgment and Agreement to be Bound” that is attached hereto as

5 Exhibit A.

6 XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

7 PROTECTED MATERIAL

8 A. When a Producing Party gives notice to Receiving Parties that certain

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

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

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

12 procedure may be established in an e-discovery order that provides for production

13 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and

14 (e), insofar as the parties reach an agreement on the effect of disclosure of a

15 communication or information covered by the attorney-client privilege or work

16 product protection, the parties may incorporate their agreement in the Stipulated

17 Protective Order submitted to the Court.

18 XIII. MISCELLANEOUS

19 A. Right to Further Relief

20 1. Nothing in this Order abridges the right of any person to seek its

21 modification by the Court in the future.

22 B. Right to Assert Other Objections

23 1. By stipulating to the entry of this Protective Order, no Party

24 waives any right it otherwise would have to object to disclosing or producing

25 any information or item on any ground not addressed in this Stipulated

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

27

1 ground to use in evidence of any of the material covered by this Protective

2 Order.

3 C. Filing Protected Material

4 1. A Party that seeks to file under seal any Protected Material must

5 comply with Civil Local Rule 79-5. Protected Material may only be filed

6 under seal pursuant to a court order authorizing the sealing of the specific

7 Protected Material at issue. If a Party's request to file Protected Material

8 under seal is denied by the Court, then the Receiving Party may file the

9 information in the public record unless otherwise instructed by the Court.

10 XIV. FINAL DISPOSITION

11 A. After the final disposition of this Action, as defined in Section V,

12 within sixty (60) days of a written request by the Designating Party, each Receiving

13 Party must return all Protected Material to the Producing Party or destroy such

14 material. As used in this subdivision, “all Protected Material” includes all copies,

15 abstracts, compilations, summaries, and any other format reproducing or capturing

16 any of the Protected Material. Whether the Protected Material is returned or

17 destroyed, the Receiving Party must submit a written certification to the Producing

18 Party (and, if not the same person or entity, to the Designating Party) by the 60 day

19 deadline that (1) identifies (by category, where appropriate) all the Protected

20 Material that was returned or destroyed and (2) affirms that the Receiving Party has

21 not retained any copies, abstracts, compilations, summaries or any other format

22 reproducing or capturing any of the Protected Material. Notwithstanding this

23 provision, Counsel are entitled to retain an archival copy of all pleadings, motion

24 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

25 deposition and trial exhibits, expert reports, attorney work product, and consultant

26 and expert work product, even if such materials contain Protected Material. Any

27

1 archival copies that contain or constitute Protected Material remain subject to

2 || this Protective Order as set forth in Section V.

3 B. — Any violation of this Order may be punished by any and all appropriate

4 ||measures including, without limitation, contempt proceedings and/or monetary

5 || sanctions.

6 IS SO ORDERED.

7

8 || DATED: July 7, 2023

9 UNITED GOUCL doer JUDGE

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

4 I, [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 issue by the United States District Court for the Central District of California on

8 [DATE] in the case of [insert formal name of the case

9 and the number and initials assigned to it by the Court]. I agree to comply with and

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

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

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

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

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

15 Order.

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

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

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

19 termination of this action. I hereby appoint [print or

20 type full name] of [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: