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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION

11 MICHELL NGUYEN, ) CASE NO.: 8:23-cv-01578-FWS-JDE ) 12 ) STIPULATED PROTECTIVE Plaintiff, ) ORDER 13 ) vs. ) 14 )

COSTCO WHOLESALE )

15 CORPORATION; and DOES 1 to 20, ) Inclusive, ) 16 ) Defendants. ) 17 ) 18 Pursuant to the Parties’ Stipulation (Dkt. 20), and for good cause shown, the 19 Court finds and orders as follows. 20 1. PURPOSES AND LIMITATIONS 21 Discovery in this action is likely to involve production of confidential, 22 proprietary or private information for which special protection from public disclosure 23 and from use for any purpose other than pursuing this litigation may be warranted. 24 Accordingly, the parties hereby stipulate to and petition the Court to enter the 25 following Stipulated Protective Order. This Order does not confer blanket protections 26 on all disclosures or responses to discovery and that the protection it affords from 27 public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. 1 2. GOOD CAUSE STATEMENT 2 This action is likely to involve trade secrets, valuable research, development, 3 commercial, financial, technical and/or proprietary information for which special 4 protection from public disclosure and from use for any purpose other than 5 prosecution of this action is warranted. Such confidential and proprietary materials 6 and information consist of, among other things, confidential business or financial 7 information, information regarding confidential business practices, or other 8 confidential research, development, or commercial information (including 9 information implicating privacy rights of third parties), information otherwise 10 generally unavailable to the public, or which may be privileged or otherwise 11 protected from disclosure under state or federal statutes, court rules, case decisions, 12 or common law. Accordingly, to expedite the flow of information, to facilitate the 13 prompt resolution of disputes over confidentiality of discovery materials, to 14 adequately protect information the parties are entitled to keep confidential, to ensure 15 that the parties are permitted reasonable necessary uses of such material in 16 preparation for and in the conduct of trial, to address their handling at the end of the 17 litigation, and serve the ends of justice, a protective order for such information is 18 justified in this matter. It is the intent of the parties that information will not be 19 designated as confidential for tactical reasons and that nothing be so designated 20 without a good faith belief that it has been maintained in a confidential, non-public 21 manner, and there is good cause why it should not be part of the public record of this 22 case. 23 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 24 The parties further acknowledge, as set forth in Section 14.3, below, that this 25 Stipulated Protective Order does not entitle them to file confidential information 26 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and 27 the standards that will be applied when a party seeks permission from the court to file material under seal. There is a strong presumption that the public has a right of 1 access to judicial proceedings and records in civil cases. In connection with non- 2 dispositive motions, good cause must be shown to support a filing under seal. See 3 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 4 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 5 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 6 stipulated protective orders require good cause showing), and a specific showing of 7 good cause or compelling reasons with proper evidentiary support and legal 8 justification, must be made with respect to Protected Material that a party seeks to 9 file under seal. The parties’ mere designation of Disclosure or Discovery Material as 10 CONFIDENTIAL does not— without the submission of competent evidence by 11 declaration, establishing that the material sought to be filed under seal qualifies as 12 confidential, privileged, or otherwise protectable—constitute good cause. 13 Further, if a party requests sealing related to a dispositive motion or trial, then 14 compelling reasons, not only good cause, for the sealing must be shown, and the 15 relief sought shall be narrowly tailored to serve the specific interest to be protected. 16 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each 17 item or type of information, document, or thing sought to be filed or introduced under 18 seal, the party seeking protection must articulate compelling reasons, supported by 19 specific facts and legal justification, for the requested sealing order. Again, 20 competent evidence supporting the application to file documents under seal must be 21 provided by declaration. 22 Any document that is not confidential, privileged, or otherwise protectable in 23 its entirety will not be filed under seal if the confidential portions can be redacted. If 24 documents can be redacted, then a redacted version for public viewing, omitting only 25 the confidential, privileged, or otherwise protectable portions of the document, shall 26 be filed. Any application that seeks to file documents under seal in their entirety 27 should include an explanation of why redaction is not feasible. 1 4. DEFINITIONS 2 4.1 Action: this pending federal lawsuit (Case No.: 8:23-cv-01578-FWS- 3 JDE). 4 4.2 Challenging Party: a Party or Non-Party that challenges the designation 5 of information or items under this Order. 6 4.3 “CONFIDENTIAL” Information or Items: information (regardless of 7 how it is generated, stored or maintained) or tangible things that qualify for protection 8 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 9 Cause Statement. 10 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as 11 their support staff). 12 4.5 Designating Party: a Party or Non-Party that designates information or 13 items that it produces in disclosures or in responses to discovery as 14 “CONFIDENTIAL.” 15 4.6 Disclosure or Discovery Material: all items or information, regardless 16 of the medium or manner in which it is generated, stored, or maintained (including, 17 among other things, testimony, transcripts, and tangible things), that are produced or 18 generated in disclosures or responses to discovery. 19 4.7 Expert: a person with specialized knowledge or experience in a matter 20 pertinent to the litigation who has been retained by a Party or its counsel to serve as 21 an expert witness or as a consultant in this Action. 22 4.8 House Counsel: attorneys who are employees of a party to this Action. 23 House Counsel does not include Outside Counsel of Record or any other outside 24 counsel. 25 4.9 Non-Party: any natural person, partnership, corporation, association or 26 other legal entity not named as a Party to this action. 27 4.10 Outside Counsel of Record: attorneys who are not employees of a party to this Action but are retained to represent a party to this Action and have appeared 1 in this Action on behalf of that party or are affiliated with a law firm that has appeared 2 on behalf of that party, and includes support staff. 3 4.11 Party: any party to this Action, including all of its officers, directors, 4 employees, consultants, retained experts, and Outside Counsel of Record (and their 5 support staffs). 6 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 7 Discovery Material in this Action. 8 4.13 Professional Vendors: persons or entities that provide litigation support 9 services (e.g., photocopying, videotaping, translating, preparing exhibits or 10 demonstrations, and organizing, storing, or retrieving data in any form or medium) 11 and their employees and subcontractors. 12 4.14 Protected Material: any Disclosure or Discovery Material that is 13 designated as “CONFIDENTIAL.” 14 4.15 Receiving Party: a Party that receives Disclosure or Discovery 15 Material from a Producing Party. 16 5. SCOPE 17 The protections conferred by this Stipulation and Order cover not only 18 Protected Material (as defined above), but also (1) any information copied or 19 extracted from Protected Material; (2) all copies, excerpts, summaries, or 20 compilations of Protected Material; and (3) any testimony, conversations, or 21 presentations by Parties or their Counsel that might reveal Protected Material. 22 Any use of Protected Material at trial shall be governed by the orders of the 23 trial judge and other applicable authorities. This Order does not govern the use of 24 Protected Material at trial. 25 6. DURATION 26 Once a case proceeds to trial, information that was designated as 27 CONFIDENTIAL or maintained pursuant to this protective order used or introduced as an exhibit at trial becomes public and will be presumptively available to all 1 members of the public, including the press, unless compelling reasons supported by 2 specific factual findings to proceed otherwise are made to the trial judge in advance 3 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 4 showing for sealing documents produced in discovery from “compelling reasons” 5 standard when merits-related documents are part of court record). Accordingly, the 6 terms of this protective order do not extend beyond the commencement of the trial. 7 7. DESIGNATING PROTECTED MATERIAL 8 7.1 Exercise of Restraint and Care in Designating Material for 9 Protection. Each Party or Non-Party that designates information or 10 items for protection under this Order must take care to limit any such designation to 11 specific material that qualifies under the appropriate standards. The Designating 12 Party must designate for protection only those parts of material, documents, items or 13 oral or written communications that qualify so that other portions of the material, 14 documents, items or communications for which protection is not warranted are not 15 swept unjustifiably within the ambit of this Order. 16 Mass, indiscriminate or routinized designations are prohibited. Designations 17 that are shown to be clearly unjustified or that have been made for an improper 18 purpose (e.g., to unnecessarily encumber the case development process or to impose 19 unnecessary expenses and burdens on other parties) may expose the Designating 20 Party to sanctions. 21 If it comes to a Designating Party’s attention that information or items that it 22 designated for protection do not qualify for protection, that Designating Party must 23 promptly notify all other Parties that it is withdrawing the inapplicable designation. 24 7.2 Manner and Timing of Designations. Except as otherwise provided in 25 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material 26 that qualifies for protection under this Order must be clearly so designated before the 27 material is disclosed or produced. / / / 1 Designation in conformity with this Order requires: 2 (a) for information in documentary form (e.g., paper or electronic 3 documents, but excluding transcripts of depositions or other pretrial or trial 4 proceedings), that the Producing Party affix at a minimum, the legend 5 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 6 contains protected material. If only a portion of the material on a page qualifies for 7 protection, the Producing Party also must clearly identify the protected portion(s) 8 (e.g., by making appropriate markings in the margins). 9 A Party or Non-Party that makes original documents available for inspection 10 need not designate them for protection until after the inspecting Party has indicated 11 which documents it would like copied and produced. During the inspection and 12 before the designation, all of the material made available for inspection shall be 13 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 14 it wants copied and produced, the Producing Party must determine which documents, 15 or portions thereof, qualify for protection under this Order. Then, before producing 16 the specified documents, the Producing Party must affix the “CONFIDENTIAL 17 legend” to each page that contains Protected Material. If only a portion of the material 18 on a page qualifies for protection, the Producing Party also must clearly identify the 19 protected portion(s) (e.g., by making appropriate markings in the margins). 20 (b) for testimony given in depositions that the Designating Party 21 identifies the Disclosure or Discovery Material on the record, before the close of the 22 deposition all protected testimony. 23 (c) for information produced in some form other than documentary and 24 for any other tangible items, that the Producing Party affix in a prominent place on 25 the exterior of the container or containers in which the information is stored the 26 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants 27 protection, the Producing Party, to the extent practicable, shall identify the protected portion(s). 1 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 2 failure to designate qualified information or items does not, standing alone, waive 3 the Designating Party’s right to secure protection under this Order for such material. 4 Upon timely correction of a designation, the Receiving Party must make reasonable 5 efforts to assure that the material is treated in accordance with the provisions of this 6 Order. 7 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 8 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 9 designation of confidentiality at any time that is consistent with the Court’s 10 Scheduling Order. 11 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 12 resolution process under Local Rule 37-1 et seq. 13 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 14 joint stipulation pursuant to Local Rule 37-2. 15 8.4 The burden of persuasion in any such challenge proceeding shall be on 16 the Designating Party. Frivolous challenges, and those made for an improper purpose 17 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 18 expose the Challenging Party to sanctions. Unless the Designating Party has waived 19 or withdrawn the confidentiality designation, all parties shall continue to afford the 20 material in question the level of protection to which it is entitled under the Producing 21 Party’s designation until the Court rules on the challenge. 22 9. ACCESS TO AND USE OF PROTECTED MATERIAL 23 9.1 Basic Principles. A Receiving Party may use Protected Material that is 24 disclosed or produced by another Party or by a Non-Party in connection with this 25 Action only for prosecuting, defending or attempting to settle this Action. Such 26 Protected Material may be disclosed only to the categories of persons and under the 27 conditions described in this Order. When the Action has been terminated, a Receiving 1 Protected Material must be stored and maintained by a Receiving Party at a 2 location and in a secure manner that ensures that access is limited to the persons 3 authorized under this Order. 4 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 5 otherwise ordered by the court or permitted in writing by the Designating Party, a 6 Receiving Party may disclose any information or item designated 7 “CONFIDENTIAL” only to: 8 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 9 well as employees of said Outside Counsel of Record to whom it is reasonably 10 necessary to disclose the information for this Action; 11 (b) the officers, directors, and employees (including House Counsel) of 12 the Receiving Party to whom disclosure is reasonably necessary for this Action; 13 (c) Experts (as defined in this Order) of the Receiving Party to whom 14 disclosure is reasonably necessary for this Action and who have signed an 15 “Acknowledgment and Agreement to Be Bound” (separately negotiated); 16 (d) the court and its personnel; 17 (e) court reporters and their staff; 18 (f) professional jury or trial consultants, mock jurors, and Professional 19 Vendors to whom disclosure is reasonably necessary for this Action and who have 20 signed an “Acknowledgment and Agreement to Be Bound” (separately negotiated); 21 (g) the author or recipient of a document containing the information or 22 a custodian or other person who otherwise possessed or knew the information; 23 (h) during their depositions, witnesses, and attorneys for witnesses, in 24 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 25 party requests that the witness sign an “Acknowledgment and Agreement to Be 26 Bound” (separately negotiated); and (2) they will not be permitted to keep any 27 confidential information unless they sign that Agreement, unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition 1 testimony or exhibits to depositions that reveal Protected Material may be separately 2 bound by the court reporter and may not be disclosed to anyone except as permitted 3 under this Stipulated Protective Order; and 4 (i) any mediators or settlement officers and their supporting personnel, 5 mutually agreed upon by any of the parties engaged in settlement discussions. 6 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 7 PRODUCED IN OTHER LITIGATION 8 If a Party is served with a subpoena or a court order issued in other litigation 9 that compels disclosure of any information or items designated in this Action as 10 “CONFIDENTIAL,” that Party must: 11 (a) promptly notify in writing the Designating Party. Such notification 12 shall include a copy of the subpoena or court order; 13 (b) promptly notify in writing the party who caused the subpoena or 14 order to issue in the other litigation that some or all of the material covered by the 15 subpoena or order is subject to this Protective Order. Such notification shall include 16 a copy of this Stipulated Protective Order; and 17 (c) cooperate with respect to all reasonable procedures sought to be 18 pursued by the Designating Party whose Protected Material may be affected. If the 19 Designating Party timely seeks a protective order, the Party served with the subpoena 20 or court order shall not produce any information designated in this action as 21 “CONFIDENTIAL” before a determination by the court from which the subpoena or 22 order issued, unless the Party has obtained the Designating Party’s permission. The 23 Designating Party shall bear the burden and expense of seeking protection in that 24 court of its confidential material and nothing in these provisions should be construed 25 as authorizing or encouraging a Receiving Party in this Action to disobey a lawful 26 directive from another court. 27 / / / / / / 1 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 2 PRODUCED IN THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by a 4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in connection with this litigation is protected by the 6 remedies and relief provided by this Order. Nothing in these provisions should be 7 construed as prohibiting a Non-Party from seeking additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to 9 produce a Non-Party’s confidential information in its possession, and the Party is 10 subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non- 13 Party that some or all of the information requested is subject to a confidentiality 14 agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a reasonably 17 specific description of the information requested; and 18 (3) make the information requested available for inspection by the 19 Non-Party, if requested. 20 (c) If the Non-Party fails to seek a protective order from this court within 21 14 days of receiving the notice and accompanying information, the Receiving Party 22 may produce the Non-Party’s confidential information responsive to the discovery 23 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 24 not produce any information in its possession or control that is subject to the 25 confidentiality agreement with the Non-Party before a determination by the court. 26 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 27 of seeking protection in this court of its Protected Material. / / / 1 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 3 Protected Material to any person or in any circumstance not authorized under this 4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 7 persons to whom unauthorized disclosures were made of all the terms of this Order, 8 and (d) request such person or persons to execute the “Acknowledgment an 9 Agreement to Be Bound” (separately negotiated). 10 13. INADVERTENT PRODUCTION OF PRIVILEGED OR 11 OTHERWISE PROTECTED MATERIAL 12 When a Producing Party gives notice to Receiving Parties that certain 13 inadvertently produced material is subject to a claim of privilege or other protection, 14 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil\ 15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 16 may be established in an e-discovery order that provides for production without prior 17 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 18 parties reach an agreement on the effect of disclosure of a communication or 19 information covered by the attorney-client privilege or work product protection, the 20 parties may incorporate their agreement in the stipulated protective order submitted 21 to the court. 22 14. MISCELLANEOUS 23 14.1 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 14.2 Right to Assert Other Objections. By stipulating to the entry of this 26 Protective Order, no Party waives any right it otherwise would have to object to 27 disclosing or producing any information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on any 1 ground to use in evidence of any of the material covered by this Protective Order. 2 14.3 Filing Protected Material. A Party that seeks to file under seal any 3 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 4 only be filed under seal pursuant to a court order authorizing the sealing of the 5 specific Protected Material. If a Party’s request to file Protected Material under seal 6 is denied by the court, then the Receiving Party may file the information in the public 7 record unless otherwise instructed by the court. 8 15. FINAL DISPOSITION 9 After the final disposition of this Action, as defined in paragraph 6, within 60 10 days of a written request by the Designating Party, each Receiving Party must return 11 all Protected Material to the Producing Party or destroy such material. As used in this 12 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 13 summaries, and any other format reproducing or capturing any of the Protected 14 Material. Whether the Protected Material is returned or destroyed, the Receiving 15 Party must submit a written certification to the Producing Party (and, if not the same 16 person or entity, to the Designating Party) by the 60-day deadline that (1) identifies 17 (by category, where appropriate) all the Protected Material that was returned or 18 destroyed and (2) affirms that the Receiving Party has not retained any copies, 19 abstracts, compilations, summaries or any other format reproducing or capturing any 20 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 21 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 22 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 23 reports, attorney work product, and consultant and expert work product, even if such 24 materials contain Protected Material. Any such archival copies that contain or 25 constitute Protected Material remain subject to this Protective Order as set forth in 26 Section 6 (DURATION). 27 / / / / / / 1 16. VIOLATION 2 Any violation of this Order may be punished by appropriate measure: 3|| including, without limitation, contempt proceedings and/or monetary sanctions. 5|| FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 7|| DATED: November 03, 2023 8 if de 9 10 ISHN D. EARLY : □ nited States Magistrate Judge

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