Barry Cole v. Xerox Corporation

1 DANIEL F. GAINES, ESQ. SBN 251488

daniel@gaineslawfirm.com

2 ALEX P. KATOFSKY, ESQ. SBN 202754

alex@gaineslawfirm.com

3 EVAN S. GAINES, ESQ. SBN 287668

evan@gaineslawfirm.com

4 GAINES & GAINES, APLC

4550 East Thousand Oaks Boulevard, Suite 100

5 Westlake Village, CA 91362

Telephone: (818) 703-8985

6 Facsimile: (818) 703-8984

7 Attorneys for Plaintiff Barry Cole,

on behalf of himself and all others similarly

8 situated and on behalf of the general public

9 JANICE P. BROWN, ESQ. SBN 114433

jbrown@meyersnave.com

10 JANINE M. BRAXTON, ESQ. SBN 296321

jbraxton@meyersnave.com

11 MEYERS NAVE

600 B Street, Suite 1650

12 San Diego, California 92101

Telephone: (619) 330-1700

13 Facsimile: (619) 330-1701

14 Attorneys for Defendant XEROX CORPORATION

15

16 UNITED STATES DISTRICT COURT

17 CENTRAL DISTRICT OF CALIFORNIA

18

19 BARRY COLE, on behalf of himself Case No. 2:23-cv-03846-AB-RAO

and on behalf of all similarly situated

20 individuals,

STIPULATED PROTECTIVE

21 Plaintiff, ORDER1

22 v.

23 XEROX CORPORATION, a New

York corporation, and DOES 1

24 through 10, inclusive,

25

Defendants.

26

27

1 1. A. PURPOSES AND LIMITATIONS

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

3 proprietary or private information for which special protection from public

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

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

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

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

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

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

10 under the applicable legal principles.

11 B. GOOD CAUSE STATEMENT

12 This action is likely to involve trade secrets, customer lists, client locations

13 and other valuable proprietary information for which special protection from public

14 disclosure and from use for any purpose other than prosecution of this action is

15 warranted. Such confidential and proprietary materials and information consist of,

16 among other things, confidential business or financial information, information

17 regarding confidential business practices, or other confidential research,

18 development, or commercial information (including information implicating privacy

19 rights of third parties), information otherwise generally unavailable to the public, or

20 which may be privileged or otherwise protected from disclosure under state or

21 federal statutes, court rules, case decisions, or common law. Accordingly, to

22 expedite the flow of information, to facilitate the prompt resolution of disputes over

23 confidentiality of discovery materials, to adequately protect information the parties

24 are entitled to keep confidential, to ensure that the parties are permitted reasonable

25 necessary uses of such material in preparation for and in the conduct of trial, to

26 address their handling at the end of the litigation, and serve the ends of justice, a

27 protective order for such information is justified in this matter. It is the intent of the

1 and that nothing be so designated without a good faith belief that it has been

2 maintained in a confidential, non-public manner, and there is good cause why it

3 should not be part of the public record of this case.

4 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

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

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

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

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

9 to file material under seal.

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

11 proceedings and records in civil cases. In connection with non-dispositive motions,

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

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

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

15 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

16 require good cause showing), and a specific showing of good cause or compelling

17 reasons with proper evidentiary support and legal justification, must be made with

18 respect to Protected Material that a party seeks to file under seal. The parties’ mere

19 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

20 without the submission of competent evidence by declaration, establishing that the

21 material sought to be filed under seal qualifies as confidential, privileged, or

22 otherwise protectable—constitute good cause.

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

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

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

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

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

1 protection must articulate compelling reasons, supported by specific facts and legal

2 justification, for the requested sealing order. Again, competent evidence supporting

3 the application to file documents under seal must be provided by declaration.

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

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

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

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

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

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

10 2. DEFINITIONS

11 2.1 Action: Cole v. Xerox Corporation, Case No. 2:23-cv-03846-AB-RAO.

12 2.2 Challenging Party: a Party or Non-Party that challenges the

13 designation of information or items under this Order.

14 2.3 “CONFIDENTIAL” Information or Items: information (regardless of

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

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

17 the Good Cause Statement.

18 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

19 their support staff).

20 2.5 Designating Party: a Party or Non-Party that designates information or

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

22 “CONFIDENTIAL.”

23 2.6 Disclosure or Discovery Material: all items or information, regardless

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

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

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

27

1 2.7 Expert: a person with specialized knowledge or experience in a matter

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

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

4 2.8 House Counsel: attorneys who are employees of a party to this Action.

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

6 counsel.

7 2.9 Non-Party: any natural person, partnership, corporation, association or

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

9 2.10 Outside Counsel of Record: attorneys who are not employees of a

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

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

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

13 2.11 Party: any party to this Action, including all of its officers, directors,

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

15 support staffs).

16 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

17 Discovery Material in this Action.

18 2.13 Professional Vendors: persons or entities that provide litigation

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

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

21 and their employees and subcontractors.

22 2.14 Protected Material: any Disclosure or Discovery Material that is

23 designated as “CONFIDENTIAL.”

24 2.15 Receiving Party: a Party that receives Disclosure or Discovery

25 Material from a Producing Party.

26

27

1 3. SCOPE

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

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

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

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

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

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

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

9 4. DURATION

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

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

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

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

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

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

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

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

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

19 5. DESIGNATING PROTECTED MATERIAL

20 5.1 Exercise of Restraint and Care in Designating Material for Protection.

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

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

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

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

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

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

27 within the ambit of this Order.

1 Mass, indiscriminate or routinized designations are prohibited. Designations

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

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

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

5 Party to sanctions.

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

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

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

9 5.2 Manner and Timing of Designations. Except as otherwise provided in

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

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

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

13 produced.

14 Designation in conformity with this Order requires:

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

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

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

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

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

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

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

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

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

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

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

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

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

1 before producing the specified documents, the Producing Party must affix the

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

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

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

5 in the margins).

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

7 the Disclosure or Discovery Material on the record, before the close of the

8 deposition all protected testimony.

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

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

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

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

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

14 protected portion(s).

15 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

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

20 Order.

21 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

22 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

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

24 Scheduling Order.

25 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

26 resolution process under Local Rule 37.1 et seq.

27 6.3 The burden of persuasion in any such challenge proceeding shall be on

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

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

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

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

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

6 challenge.

7 7. ACCESS TO AND USE OF PROTECTED MATERIAL

8 7.1 Basic Principles. A Receiving Party may use Protected Material that is

9 disclosed 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. Such

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

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

13 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

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

17 authorized under this Order.

18 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

20 Receiving Party may disclose any information or item designated

21 “CONFIDENTIAL” only to:

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

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

24 necessary to disclose the information for this Action;

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

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

27

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

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

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

4 (d) the court and its personnel;

5 (e) court reporters and their staff;

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

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

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

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

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

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

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

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

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

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

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

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

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

19 as permitted under this Stipulated Protective Order; and

20 (i) any mediator or settlement officer, and their supporting personnel,

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

22 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

23 IN OTHER LITIGATION

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

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

26 “CONFIDENTIAL,” that Party must:

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

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

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

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

4 a copy of this Stipulated Protective Order; and

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

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

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

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

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

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

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

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

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

14 to disobey a lawful directive from another court.

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

16 PRODUCED IN THIS LITIGATION

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

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

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

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

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

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

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

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

25 confidential information, then the Party shall:

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

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

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

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

3 specific description of the information requested; and

4 (3) make the information requested available for inspection by the

5 Non-Party, if requested.

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

7 14 days of receiving the notice and accompanying information, the Receiving Party

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

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

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

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

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

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

14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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

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

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

23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

24 PROTECTED MATERIAL

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

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

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

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

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

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

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

5 product protection, the parties may incorporate their agreement in the stipulated

6 protective order submitted to the court.

7 12. MISCELLANEOUS

8 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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

10 12.2 Right to Assert Other Objections. By stipulating to the entry of this

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

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

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

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

15 12.3 Filing Protected Material. A Party that seeks to file under seal any

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

17 may only be filed under seal pursuant to a court order authorizing the sealing of the

18 specific Protected Material at issue. If a Party’s request to file Protected Material

19 under seal is denied by the court, then the Receiving Party may file the information

20 in the public record unless otherwise instructed by the court.

21 13. FINAL DISPOSITION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11 Section 4 (DURATION).

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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 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.

6

7 || DATED: September 15, 2023

8

10 Attorneys for Plaintiff

11

12 || DATED: September 14, 2023

My eee

5 Attorneys for Defendant

16

17

18 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

19

20 || DATED: September 26, 2023

21

|| Reyete, □□ QC

HON. ROZELLA A. OLIVER

23 || United States Magistrate Judge

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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 I have read in its

6 entirety and understand the Stipulated Protective Order that was issued by the

7 United States District Court for the Central District of California on [date] in the

8 case of ___________ in Cole v. Xerox Corporation, Case No. 2:23-cv-03846-AB-

9 RAO. I agree to comply with and to be bound by all the terms of this Stipulated

10 Protective Order and I understand and acknowledge that failure to so comply could

11 expose me to sanctions and punishment in the nature of contempt. I solemnly

12 promise that I will not disclose in any manner any information or item that is subject

13 to this Stipulated Protective Order to any person or entity except in strict compliance

14 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.

18 I 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