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5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WENDY MAGEE, an individual, 9 Case No. 2:20-cv-02618-VAP-GJS Plaintiff, 10 v. STIPULATED PROTECTIVE 11 ORDER NIKE RETAIL SERVICES, INC., et 12 al. Complaint Filed: February 13, 2020 13 Defendant(s). Trial Date: July 13, 2021

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26 27 1 WHEREAS, Plaintiff Wendy Magee (“Plaintiff” or “Magee”), on the one 2 hand, and Defendant NIKE Retail Services, Inc. (“Defendant” or “NIKE”), on the 3 other hand (collectively, the “Parties”), may produce or seek discovery of 4 documents, information, or other materials that may contain or relate to personal, 5 sensitive, employment, proprietary, trade secret, and/or confidential information of 6 another party or third party; The Parties hereby enter into this Stipulated Protective 7 Order as follows: 8 1. A. PURPOSES AND LIMITATIONS 9 Discovery in this action is likely to involve production of confidential, 10 proprietary or private information for which special protection from public 11 disclosure and from use for any purpose other than prosecuting this litigation may 12 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 13 enter the following Stipulated Protective Order. The parties acknowledge that this 14 Order does not confer blanket protections on all disclosures or responses to 15 discovery and that the protection it affords from public disclosure and use extends 16 only to the limited information or items that are entitled to confidential treatment 17 under the applicable legal principles. 18 B. GOOD CAUSE STATEMENT 19 Disclosure and discovery activity in this action are likely to involve 20 confidential documents and other information related to employment, an internal 21 investigation, loss prevention and other corporate policies, practices and training, 22 communications with consumers, and/or proprietary business information for which 23 special protection from public disclosure and from use for any purpose other than 24 prosecution of this action is warranted. Such confidential and proprietary materials 25 and information consist of, among other things, a personnel file, information related 26 to an investigation that is the subject of this lawsuit including witness statements, 27 company policies regarding loss prevention and product recovery, manager training 1 information regarding a consumer’s product purchase (including information 2 implicating privacy rights of third parties), information otherwise generally 3 unavailable to the public, or which may be privileged or otherwise protected from 4 disclosure under state or federal statutes, court rules, case decisions, contract(s), or 5 common law. The disclosure of such information may result in irreparable harm to 6 the Parties or third parties by revealing confidential strategic business information to 7 the public, including the parties’ competitors, and/or revealing private, employment, 8 investigatory, loss prevention and other confidential information that is protected 9 from disclosure as a matter of law and/or by contract. Accordingly, to expedite the 10 flow of information, to facilitate the prompt resolution of disputes over 11 confidentiality of discovery materials, to adequately protect information the parties 12 are entitled to keep confidential, to ensure that the parties are permitted reasonable 13 necessary uses of such material in preparation for and in the conduct of trial, to 14 address their handling at the end of the litigation, and serve the ends of justice, a 15 protective order for such information is justified in this matter. It is the intent of the 16 parties that information will not be designated as confidential for tactical reasons 17 and that nothing be so designated without a good faith belief that it has been 18 maintained in a confidential, non-public manner, and there is good cause why it 19 should not be part of the public record of this case. 20 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 21 The parties further acknowledge, as set forth in Section 12.3, below, that this 22 Stipulated Protective Order does not entitle them to file confidential information 23 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 24 and the standards that will be applied when a party seeks permission from the court 25 to file material under seal. 26 There is a strong presumption that the public has a right of access to judicial 27 proceedings and records in civil cases. In connection with non-dispositive motions, 1 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 2 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 3 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 4 require good cause showing), and a specific showing of good cause or compelling 5 reasons with proper evidentiary support and legal justification, must be made with 6 respect to Protected Material that a party seeks to file under seal. The parties’ mere 7 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 8 without the submission of competent evidence by declaration, establishing that the 9 material sought to be filed under seal qualifies as confidential, privileged, or 10 otherwise protectable—constitute good cause. 11 Further, if a party requests sealing related to a dispositive motion or trial, then 12 compelling reasons, not only good cause, for the sealing must be shown, and the 13 relief sought shall be narrowly tailored to serve the specific interest to be protected. 14 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 15 each item or type of information, document, or thing sought to be filed or introduced 16 under seal in connection with a dispositive motion or trial, the party seeking 17 protection must articulate compelling reasons, supported by specific facts and legal 18 justification, for the requested sealing order. Again, competent evidence supporting 19 the application to file documents under seal must be provided by declaration. 20 Any document that is not confidential, privileged, or otherwise protectable in 21 its entirety will not be filed under seal if the confidential portions can be redacted. 22 If documents can be redacted, then a redacted version for public viewing, omitting 23 only the confidential, privileged, or otherwise protectable portions of the document, 24 shall be filed. Any application that seeks to file documents under seal in their 25 entirety should include an explanation of why redaction is not feasible. 26 2. DEFINITIONS 27 2.1 Action: this pending federal lawsuit, with a Case Number 2:20-cv- 1 2.2 Challenging Party: a Party or Non-Party that challenges the 2 designation of information or items under this Order. 3 2.3 “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 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 8 their support staff). 9 2.5 Designating Party: a Party or Non-Party that designates information or 10 items that it produces in disclosures or in responses to discovery as 11 “CONFIDENTIAL.” 12 2.6 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 or 15 generated in disclosures or responses to discovery in this matter. 16 2.7 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 2.8 House Counsel: attorneys who are employees of a party to this Action. 20 House Counsel does not include Outside Counsel of Record or any other outside 21 counsel. 22 2.9 Non-Party: any natural person, partnership, corporation, association or 23 other legal entity not named as a Party to this action. 24 2.10 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 that has appeared on behalf of that party, and includes support staff. 1 employees, consultants, retained experts, and Outside Counsel of Record (and their 2 support staffs). 3 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 4 Discovery Material in this Action. 5 2.13 Professional Vendors: persons or entities that provide litigation 6 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 7 demonstrations, and organizing, storing, or retrieving data in any form or medium) 8 and their employees and subcontractors. 9 2.14 Protected Material: any Disclosure or Discovery Material that is 10 designated as “CONFIDENTIAL.” 11 2.15 Receiving Party: a Party that receives Disclosure or Discovery 12 Material from a Producing Party. 13 3. SCOPE 14 The protections conferred by this Stipulation and Order cover not only 15 Protected Material (as defined above), but also (1) any information copied or 16 extracted from Protected Material; (2) all copies, excerpts, summaries, or 17 compilations of Protected Material; and (3) any testimony, conversations, or 18 presentations by Parties or their Counsel that might reveal Protected Material. 19 Any use of Protected Material at trial shall be governed by the orders of the 20 trial judge. This Order does not govern the use of Protected Material at trial. 21 4. DURATION 22 FINAL DISPOSITION of the action is defined as the conclusion of any 23 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal 24 has run. Except as set forth below, the terms of this protective order apply through 25 FINAL DISPOSITION of the action. The parties may stipulate that the they will be 26 contractually bound by the terms of this agreement beyond FINAL DISPOSITION, 27 but will have to file a separate action for enforcement of the agreement once all 1 Once a case proceeds to trial, information that was designated as 2 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 3 as an exhibit at trial becomes public and will be presumptively available to all 4 members of the public, including the press, unless compelling reasons supported by 5 specific factual findings to proceed otherwise are made to the trial judge in advance 6 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 7 showing for sealing documents produced in discovery from “compelling reasons” 8 standard when merits-related documents are part of court record). Accordingly, for 9 such materials, the terms of this protective order do not extend beyond the 10 commencement of the trial. 11 5. DESIGNATING PROTECTED MATERIAL 12 5.1 Exercise of Restraint and Care in Designating Material for Protection. 13 Each Party or Non-Party that designates information or items for protection under 14 this Order must take care to limit any such designation to specific material that 15 qualifies under the appropriate standards. The Designating Party must designate for 16 protection only those parts of material, documents, items or oral or written 17 communications that qualify so that other portions of the material, documents, items 18 or communications for which protection is not warranted are not swept unjustifiably 19 within the ambit of this Order. 20 Mass, indiscriminate or routinized designations are prohibited. Designations 21 that are shown to be clearly unjustified or that have been made for an improper 22 purpose (e.g., to unnecessarily encumber the case development process or to impose 23 unnecessary expenses and burdens on other parties) may expose the Designating 24 Party to sanctions. 25 If it comes to a Designating Party’s attention that information or items that it 26 designated for protection do not qualify for protection, that Designating Party must 27 promptly notify all other Parties that it is withdrawing the inapplicable designation. 1 5.2 Manner and Timing of Designations. Except as otherwise provided in 2 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 4 under this Order must be clearly so designated before the material is disclosed or 5 produced. 6 Designation in conformity with this Order requires: 7 (a) for information in documentary form (e.g., paper or electronic 8 documents, but excluding transcripts of depositions or other pretrial or trial 9 proceedings), that the Producing Party affix at a minimum, the legend 10 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 11 contains protected material. If only a portion of the material on a page qualifies for 12 protection, the Producing Party also must clearly identify the protected portion(s) 13 (e.g., by making appropriate markings in the margins). 14 A Party or Non-Party that makes original documents available for inspection 15 need not designate them for protection until after the inspecting Party has indicated 16 which documents it would like copied and produced. During the inspection and 17 before the designation, all of the material made available for inspection shall be 18 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 19 documents it wants copied and produced, the Producing Party must determine which 20 documents, or portions thereof, qualify for protection under this Order. Then, 21 before producing the specified documents, the Producing Party must affix the 22 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 23 portion of the material on a page qualifies for protection, the Producing Party also 24 must clearly identify the protected portion(s) (e.g., by making appropriate markings 25 in the margins). 26 (b) for testimony given in depositions that the Designating Party identifies 27 the Disclosure or Discovery Material on the record, no later than 14 calendar days 1 Designating Party all protected testimony. The Designating Party shall identify the 2 specific portions of the testimony to which protection is sought. Only the portions 3 of the testimony that are designated for protection within the 14 days from the date 4 the deposition transcript is received by counsel for the Designating Party shall be 5 covered by the provisions of this Stipulated Protective Order. 6 (c) for information produced in some form other than documentary and 7 for any other tangible items, that the Producing Party affix in a prominent place on 8 the exterior of the container or containers in which the information is stored the 9 legend “CONFIDENTIAL.” If only a portion or portions of the information 10 warrants protection, the Producing Party, to the extent practicable, shall identify the 11 protected portion(s). 12 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 13 failure to designate qualified information or items does not, standing alone, waive 14 the Designating Party’s right to secure protection under this Order for such material. 15 Upon timely correction of a designation, the Receiving Party must make reasonable 16 efforts to assure that the material is treated in accordance with the provisions of this 17 Order. 18 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 19 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 20 designation of confidentiality at any time that is consistent with the Court’s 21 Scheduling Order. 22 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 23 resolution process under Local Rule 37.1 et seq. 24 6.3 The burden of persuasion in any such challenge proceeding shall be on 25 the Designating Party. Frivolous challenges, and those made for an improper 26 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 27 parties) may expose the Challenging Party to sanctions. Unless the Designating 1 continue to afford the material in question the level of protection to which it is 2 entitled under the Producing Party’s designation until the Court rules on the 3 challenge. 4 7. ACCESS TO AND USE OF PROTECTED MATERIAL 5 7.1 Basic Principles. A Receiving Party may use Protected Material that is 6 disclosed or produced by another Party or by a Non-Party in connection with this 7 Action only for prosecuting, defending or attempting to settle this Action. Such 8 Protected Material may be disclosed only to the categories of persons and under the 9 conditions described in this Order. When the Action has been terminated, a 10 Receiving Party must comply with the provisions of section 13 below (FINAL 11 DISPOSITION). 12 Protected Material must be stored and maintained by a Receiving Party at a 13 location and in a secure manner that ensures that access is limited to the persons 14 authorized under this Order. 15 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 16 otherwise ordered by the court or permitted in writing by the Designating Party, a 17 Receiving Party may disclose any information or item designated 18 “CONFIDENTIAL” only to: 19 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 20 well as employees of said Outside Counsel of Record to whom it is reasonably 21 necessary to disclose the information for this Action; 22 (b) the officers, directors, and employees (including House Counsel) of 23 the Receiving Party to whom disclosure is reasonably necessary for this Action; 24 (c) Experts (as defined in this Order) of the Receiving Party to whom 25 disclosure is reasonably necessary for this Action and who have signed the 26 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 (d) the court and its personnel; 1 (f) professional jury or trial consultants, mock jurors, and Professional 2 Vendors to whom disclosure is reasonably necessary for this Action and who have 3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (g) the author or recipient of a document containing the information or a 5 custodian or other person who otherwise possessed or knew the information; 6 (h) during their depositions, witnesses, and attorneys for witnesses, in the 7 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 8 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 9 not be permitted to keep any confidential information unless they sign the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 11 agreed by the Designating Party or ordered by the court. Pages of transcribed 12 deposition testimony or exhibits to depositions that reveal Protected Material may 13 be separately bound by the court reporter and may not be disclosed to anyone except 14 as permitted under this Stipulated Protective Order; and 15 (i) any mediator or settlement officer, and their supporting personnel, 16 mutually agreed upon by any of the parties engaged in settlement discussions. 17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 18 IN OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation 20 that compels disclosure of any information or items designated in this Action as 21 “CONFIDENTIAL,” that Party must: 22 (a) promptly notify in writing the Designating Party. Such notification 23 shall include a copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or order 25 to issue in the other litigation that some or all of the material covered by the 26 subpoena or order is subject to this Protective Order. Such notification shall include 27 a copy of this Stipulated Protective Order; and 1 pursued by the Designating Party whose Protected Material may be affected. 2 If the Designating Party timely seeks a protective order, the Party served with 3 the subpoena or court order shall not produce any information designated in this 4 action as “CONFIDENTIAL” before a determination by the court from which the 5 subpoena or order issued, unless the Party has obtained the Designating Party’s 6 permission. The Designating Party shall bear the burden and expense of seeking 7 protection in that court of its confidential material and nothing in these provisions 8 should be construed as authorizing or encouraging a Receiving Party in this Action 9 to disobey a lawful directive from another court. 10 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 11 PRODUCED IN THIS LITIGATION 12 (a) The terms of this Order are applicable to information produced by a 13 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 14 produced by Non-Parties in connection with this litigation is protected by the 15 remedies and relief provided by this Order. Nothing in these provisions should be 16 construed as prohibiting a Non-Party from seeking additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to 18 produce a Non-Party’s confidential information in its possession, and the Party is 19 subject to an agreement with the Non-Party not to produce the Non-Party’s 20 confidential information, then the Party shall: 21 (1) promptly notify in writing the Requesting Party and the Non-Party 22 that some or all of the information requested is subject to a confidentiality 23 agreement with a Non-Party; 24 (2) promptly provide the Non-Party with a copy of the Stipulated 25 Protective Order in this Action, the relevant discovery request(s), and a reasonably 26 specific description of the information requested; and 27 (3) make the information requested available for inspection by the 1 (c) If the Non-Party fails to seek a protective order from this court within 2 14 days of receiving the notice and accompanying information, the Receiving Party 3 may produce the Non-Party’s confidential information responsive to the discovery 4 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 5 not produce any information in its possession or control that is subject to the 6 confidentiality agreement with the Non-Party before a determination by the court. 7 Absent a court order to the contrary, the Non-Party shall bear the burden and 8 expense of seeking protection in this court of its Protected Material. 9 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 10 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 11 Protected Material to any person or in any circumstance not authorized under this 12 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 13 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 14 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 15 persons to whom unauthorized disclosures were made of all the terms of this Order, 16 and (d) request such person or persons to execute the “Acknowledgment and 17 Agreement to Be Bound” that is attached hereto as Exhibit A. 18 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 19 PROTECTED MATERIAL 20 When a Producing Party gives notice to Receiving Parties that certain 21 inadvertently produced material is subject to a claim of privilege or other protection, 22 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 23 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 24 procedure may be established in an e-discovery order that provides for production 25 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 26 (e), insofar as the parties reach an agreement on the effect of disclosure of a 27 communication or information covered by the attorney-client privilege or work 1 protective order submitted to the court. 2 12. MISCELLANEOUS 3 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 4 person to seek its modification by the Court in the future. 5 12.2 Right to Assert Other Objections. By stipulating to the entry of this 6 Protective Order, no Party waives any right it otherwise would have to object to 7 disclosing or producing any information or item on any ground not addressed in this 8 Stipulated Protective Order. Similarly, no Party waives any right to object on any 9 ground to use in evidence of any of the material covered by this Protective Order. 10 12.3 Filing Protected Material. A Party that seeks to file under seal any 11 Protected Material must comply with Local Civil Rule 79-5. Protected Material 12 may only be filed under seal pursuant to a court order authorizing the sealing of the 13 specific Protected Material at issue. If a Party’s request to file Protected Material 14 under seal is denied by the court, then the Receiving Party may file the information 15 in the public record unless otherwise instructed by the court. 16 13. FINAL DISPOSITION 17 After the final disposition of this Action, as defined in paragraph 4, within 60 18 days of a written request by the Designating Party, each Receiving Party must return 19 all Protected Material to the Producing Party or destroy such material. As used in 20 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 21 summaries, and any other format reproducing or capturing any of the Protected 22 Material. Whether the Protected Material is returned or destroyed, the Receiving 23 Party must submit a written certification to the Producing Party (and, if not the same 24 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 25 (by category, where appropriate) all the Protected Material that was returned or 26 destroyed and (2) affirms that the Receiving Party has not retained any copies, 27 abstracts, compilations, summaries or any other format reproducing or capturing any 1 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 2 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 3 || reports, attorney work product, and consultant and expert work product, even if such 4 |} materials contain Protected Material. Any such archival copies that contain or 5 || constitute Protected Material remain subject to this Protective Order as set forth in 6 || Section 4 (DURATION). 7 || 14. VIOLATION 8 || Any violation of this Order may be punished by appropriate measures including, 9 || without limitation, contempt proceedings and/or monetary sanctions. 10 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 11 12 Pursuant to Local Rule 5-4.3.4(a)(2)(), I, Trevor J. Wynn, attest that all 13 || signatories listed, and on whose behalf this filing is submitted, concur in the filing’s 14 || content and have authorized the filing. 15 16 || DATED: June 18, 2020 17 18 || Ructneye toe Pasa 19 20 || DATED: June 18, 2020 21 22 |) Rworneys Tor Delendant 23 24 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 25 || DATED: June 23, 2020 26 rat 27 28 UNITED STATES MAGISTRATE JUDGE

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of Wendy Magee v. NIKE Retail Services, Inc., et al., Case No. 8 2:20-cv-02618-VAP-GJS. I agree to comply with and to be bound by all the terms 9 of this Stipulated Protective Order and I understand and acknowledge that failure to 10 so comply could expose me to sanctions and punishment in the nature of contempt. 11 I solemnly promise that I will not disclose in any manner any information or item 12 that is subject to this Stipulated Protective Order to any person or entity except in 13 strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Central District of California for enforcing the terms of this Stipulated Protective 16 Order, even if such enforcement proceedings occur after termination of this action. 17 I hereby appoint __________________________ [print or type full name] of 18 _______________________________________ [print or type full address and 19 telephone number] as my California agent for service of process in connection with 20 this action or any proceedings related to enforcement of this Stipulated Protective 21 Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 25 Printed name: _______________________________ 26 Signature: __________________________________ 27