Opinion
Case No. C04 3341 MHP.
December 7, 2004
THE IMPACT FUND, Brad Seligman, Jocelyn D. Larkin, Berkeley, CA.
LIEFF, CABRASER, HEIMANN, BERNSTEIN, LLP, James M. Finberg, Bill Lann Lee, Karin A. Kramer, Lexi J. Hazam, Nirej S. Sekhon.
DAVIS, COWELL BOWE, LLP, Steve Stemerman, Elizabeth A. Lawrence, San Francisco, CA, Attorneys for Plaintiff Shirley "Rae" Ellis and the Proposed Class.
SEYFARTH SHAW LLP, Kenwood C. Youmans, David D. Kadue, Los Angeles, California.
SEYFARTH SHAW LLP, Gerald L. Maatman, Jr. (Pro Hac Vice Pending), Chicago, Illinois, Attorneys for Defendant Costco Wholesale Corporation.
David D. Kadue, Attorneys for Defendant, COSTCO WHOLESALE CORPORATION.
STIPULATION AND PROTECTIVE ORDER RE PRODUCTION OF CONFIDENTIAL INFORMATION
Because of the substantial volume of information at issue and the fact that much of it may be of the type deserving of protection, and to eliminate the need for repeated requests that the Court become directly involved in the discovery process, Plaintiffs and Defendant (collectively, "the Parties"), by and through their respective counsel, and pursuant to Rule 26 of the Federal Rules of Civil Procedure, HEREBY STIPULATE AND JOINTLY REQUEST that a protective order be entered as follows:
1. This Stipulation and Protective Order shall govern documents, materials, depositions or other testimony, deposition exhibits, interrogatory responses, responses to requests for admissions, and other information (collectively referred to as "Information") produced in this case by the Parties and certain non-parties (former warehouse managers and executives of Costco). The Parties intend that, wherever practicable, Confidential Information will be redacted or segregated to allow non-confidential portions to be treated as outside the scope of this Order. The Parties do not intend that the reports of statistical experts shall be considered confidential except to the extent that they disclose confidential information about individual employees or disclose proprietary trade secret information. Upon the designation of Confidential Information, all copies thereof then or thereafter in the possession or control of a Party, from whatever source received, shall be subject to this Order.
2. A party may designate as "Confidential" any nonpublic proprietary, trade secret, or personally private information ("Confidential Information") produced by a Party or certain non-parties (former warehouse managers and executives of Costco). Failure of counsel to designate Information as Confidential shall not, however, be deemed a waiver of confidentiality. The Party designating Confidential Information has the burden to justify the designation if challenged by a Party. The following categories of information are NOT Confidential Information: (a) Materials that have been distributed publicly or widely distributed to Costco employees, such as the Costco Employee Agreement and blank employee forms. (b) Employment or diversity statistics maintained by a Party. (c) An employee's name, gender, race, work history, or attempts to seek advancement. (d) General employment policies of Defendant, and memoranda, correspondence or analysis of the implementation of said policies, including diversity and promotion policies. The following categories of information ARE Confidential Information: sensitive private employee information, such as social security numbers. Nothing herein shall preclude the use of Confidential Information to locate or contact any potential witness or class member.
3. Absent a specific order by this Court, or by a Special Master to be agreed upon by the Parties, and except as provided below, designated Confidential Information may be used solely in connection with the following action: Ellis v. Costco Wholesale Corp., and shall not be used for any business, proprietary or commercial purpose. Any Confidential Information is for the use only of the Parties, the Court, jury, potential or actual consultants, potential witnesses, staff of experts and consultants, and the author and listed addresses of Confidential Information. Counsel for any Party who obtains any Confidential Information shall protect it and its contents from disclosure to anyone save the persons designated in this paragraph. In addition to the persons listed above, counsel of record may disclose Confidential Information where necessary to the proper preparation for and trial of this case to: (i) their employees and employee equivalents ( e.g., contract paralegals); (ii) independent experts or consultants retained for the purpose of aiding counsel of record preparation for trial; (iii) witnesses testifying under oath, where examining counsel has a good-faith basis for believing that the witness has testimony pertinent to the Confidential Information; (iv) the Parties; (v) the subject of the document; and (vi) the Court and members of its staff.
4. If, during a deposition, counsel inquires as to Confidential Information, the witness may be asked to agree to be bound to the terms of this Order. If the witness does not so agree, then the witness may not receive and no one may give the witness any copy of Confidential Information, including, but not limited to, a copy of any pages of the transcript of the deposition that are designated CONFIDENTIAL. If the witness thus refuses to cooperate, then the court reporter shall be instructed to give the witness written notice when the transcript has been prepared, stating that the witness may inspect the transcript and its exhibits only in the reporter's office. The refusing witness shall not be furnished with any portion of the deposition transcript or exhibits that have been designated as CONFIDENTIAL. If the witness does not sign the original deposition transcript within thirty (30) days after the date of the written notice described in this paragraph, then the deposition transcript may be used as if it had been signed.
5. Before Confidential Information, or the substance or a summary thereof, shall be disclosed to experts or consultants retained by the Parties, the Parties are hereby ordered to tender a copy of this Stipulation and Protective Order to the recipient so that each such entity or person to whom such disclosure of Confidential Information is made shall be fully informed of the Stipulation and Protective Order and its effect. In addition, those experts or consultants shall sign and abide by the terms of the declaration attached as Exhibit A. Those experts or consultants shall not give, show or otherwise divulge any Confidential Information to any entity or person except as specifically provided for by this Order.
6. Any Confidential Information that is submitted to the Clerk of the District Court shall be filed under seal. If any Confidential Information is submitted to the Court under seal, then the party submitting the Confidential Information shall file a copy of the pleading containing the Confidential Information in redacted form. If any Confidential Information is included with or in any way disclosed by any pleading, motion, or paper filed with the Court, then the Confidential Information shall not be included in any public dissemination of the pleading, motion, or paper, including, without limitation, any press release or any web site posting.
7. Confidential Information produced before the entry of this Order by the Court shall be subject to the provisions of this Order to the same extent as if the Order had been entered by the Court as of the date the Confidential Information was produced. However, information obtained from non-parties (other than former Costco warehouse managers and executives) shall not be subject to this Order.
8. The designation of Information as Confidential shall not be considered binding on any party. A designation may be contested by a Party by written notice to the designating party. Within seven days of any said notice, the designating party shall provide a written response that either a) withdraws the designation or b) states the basis upon which the designating party justifies the Confidential Information designation. A challenging party dissatisfied with this response may seek expedited review of the designation by an agreed Special Master (or if no Special Master has been selected, by a Special Master assigned by the Court). The designating party shall respond in writing within seven days. The Special Master's decision as to the proper designation shall be binding on the Parties. The losing side in any proceeding involving the Special Master shall pay the fees and expenses of the Master, if the Master finds that the losing side's position was substantially unjustified; otherwise the Master's fees and expenses will be split evenly between the sides. Until this Court or a Special Master sets aside a designation of Confidential Information, it shall be treated as Confidential Information.
9. Nothing contained herein shall prevent any party from using Confidential Information for a trial, hearing, or other public proceeding in this matter, provided that the designated party has reasonable notice and opportunity to be heard. Confidential Information can be introduced at trial, provided that all CONFIDENTIAL stamps are removed before use. The removal of the CONFIDENTIAL stamp, however, shall not affect the status of the Confidential Information unless it is admitted into evidence by the Court, in which case, unless the Court orders otherwise, the evidence will become public knowledge.
10. Producing or receiving materials or otherwise complying with the terms of this Stipulation and Protective Order shall not prejudice any right to:
A. object to the production of documents not subject to discovery,
B. object to authenticity or admissibility of any document, testimony or evidence,
C. seek a determination whether particular information should be produced or should be subject to the terms of this Order,
D. apply for a further protective order,
E. reach written agreement to alter or waive this Order as to particular items of Confidential Information, or
F. seek Court approval to modify this Order.
11. This Order has no effect upon any Party's use of its own Confidential Information, except that Confidential Information shall lose its status as such if the designating party takes action with regard to Confidential Information inconsistent with the terms of this Order.
12. This Order shall, absent written permission of the Producing Party or further order, continue to apply after the end of this action (including any appeals).
13. Within 45 days after the end of this action, including any appeals and the pendency of any settlement or consent decree, the originals and all copies of Confidential Information shall, at the written direction of the Producing Party, be destroyed or given to the Producing Party.
14. This Stipulation shall, subject to Court approval, be binding upon the Parties upon their signature hereto and by signing hereto each Party agrees to comply with this Stipulation. If the Court does not enter into the Proposed Protective Order based upon this Stipulation, the Parties shall in good faith negotiate any terms that the Court finds objectionable.
15. Nothing herein shall be deemed to waive any applicable privilege or work product protection, or to affect a Party's ability to seek relief for an inadvertent disclosure of material protected by privilege or work product protection.
STIPULATION
IT IS SO STIPULATED.
ORDER
GOOD CAUSE APPEARING, it is hereby ORDERED that the Parties shall comply with and be bound by the provisions of the attached Stipulation concerning Confidential Information.
IT IS SO ORDERED.
ORDER APPROVING AND MODIFYING STIPULATED PROTECTIVE ORDER IN C-04-3344 MHP
The above (attached) stipulation re confidentiality is approved except as follows:
1) Counsel shall narrowly tailor the documents, materials or papers that come within this order
2) As applied to documents, materials or papers filed with the court, this order shall be used sparingly to cover only those items that are clearly trade secret, come within clearly defined areas of privileges accepted in the federal courts, or have a compelling need for confidentiality.
3) Documents, material or papers submitted as exhibits to or in support of motions or for pretrial, trial or other court proceedings shall not be filed under seal except by order the court. The parties are reminded that the federal courts are public fora and matters to be heard by the court are conducted publicly. Furthermore, documents, materials or other papers submitted as exhibits will remain as part of the court record and may not be withdrawn without order of the court.
4) Under no circumstances shall memoranda or pleadings required to be filed with the court pursuant to the Federal Rules of Civil Procedure or the Civil Local Rules of this District be filed under seal.
IT IS SO ORDERED.
EXHIBIT A DECLARATION REGARDING CONFIDENTIALITY
I,_____________________, declare:1. I reside at _________________________________.
2. I have read the Stipulation and Protective Order dated in November 2004 and entered in Ellis v. Costco Wholesale Corporation ("the Order").
3. I am familiar with the contents of the Order and agree to comply with and be bound by the provisions of the Order.
4. I will not divulge to persons other than those specifically authorized by the Order, and will not copy or use except solely for the purposes of this litigation and only as expressly permitted by the terms of the Order, any information I or my colleagues have obtained pursuant to the Order.
5. By signing below, I hereby agree to submit to the jurisdiction of the courts of the United States of America for resolving any dispute regarding the Order and this Declaration Regarding Confidentiality. I further agree that in any dispute regarding the Order and this Declaration Regarding Confidentiality, the United States District Court having jurisdiction over Ellis v. Costco Wholesale Corp. shall be the exclusive venue.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on ______ at _____________________.
_______________________________________ (SIGNATURE)