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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 Case No. 2:19-cv-08570 AB (GJSx) 11 ELIZABETH REED,

12 Plaintiff, Hon. André Birotte Jr., Courtroom 7B

13 v.

STIPULATED PROTECTIVE

14 COSTCO WHOLESALE ORDER1 CORPORATION, and DOES 1 15 through 20,

16 Defendants. 17

18 19 1. A. PURPOSES AND LIMITATIONS 20 Discovery in this action is likely to involve production of confidential, 21 proprietary or private information for which special protection from public 22 disclosure and from use for any purpose other than prosecuting this litigation may 23 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 24 enter the following Stipulated Protective Order. The parties acknowledge that this 25 Order does not confer blanket protections on all disclosures or responses to 26 27 1 discovery and that the protection it affords from public disclosure and use extends 2 only to the limited information or items that are entitled to confidential treatment 3 under the applicable legal principles. 4 B. GOOD CAUSE STATEMENT 5 A Stipulated Protective Order is required to ensure the confidentiality of certain 6 information involving trade secrets, customer and pricing lists and other valuable 7 research, development, commercial, financial, technical and/or proprietary 8 information that is protected from public disclosure and from use for any purpose 9 other than prosecution of this action. 10 Such confidential and proprietary materials and information consist of, among 11 other things, confidential business or financial information, information regarding 12 confidential business practices, information otherwise generally unavailable to the 13 public, or which may be privileged or otherwise protected from disclosure under 14 state or federal statutes, court rules, case decisions, or common law. Accordingly, to 15 expedite the flow of information, to facilitate the prompt resolution of disputes over 16 confidentiality of discovery materials, to adequately protect information the parties 17 are entitled to keep confidential, to ensure that the parties are permitted reasonable 18 necessary uses of such material in preparation for and in the conduct of trial, to 19 address their handling at the end of the litigation, and serve the ends of justice, a 20 protective order for such information is justified in this matter. It is the intent of the 21 parties that information will not be designated as confidential for tactical reasons 22 and that nothing be so designated without a good faith belief that it has been 23 maintained in a confidential, non-public manner, and there is good cause why it 24 should not be part of the public record of this case. 25 /// 26 /// 27 /// 1 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 2 SEAL 3 The parties further acknowledge, as set forth in Section 12.3, below, that this 4 Stipulated Protective Order does not entitle them to file confidential information 5 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 6 and the standards that will be applied when a party seeks permission from the court 7 to file material under seal. 8 There is a strong presumption that the public has a right of access to judicial 9 proceedings and records in civil cases. In connection with non-dispositive motions, 10 good cause must be shown to support a filing under seal. See Kamakana v. City and 11 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 12 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 13 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 14 require good cause showing), and a specific showing of good cause or compelling 15 reasons with proper evidentiary support and legal justification, must be made with 16 respect to Protected Material that a party seeks to file under seal. The parties’ mere 17 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 18 without the submission of competent evidence by declaration, establishing that the 19 material sought to be filed under seal qualifies as confidential, privileged, or 20 otherwise protectable—constitute good cause. 21 Further, if a party requests sealing related to a dispositive motion or trial, then 22 compelling reasons, not only good cause, for the sealing must be shown, and the 23 relief sought shall be narrowly tailored to serve the specific interest to be protected. 24 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 25 each item or type of information, document, or thing sought to be filed or introduced 26 under seal in connection with a dispositive motion or trial, the party seeking 27 protection must articulate compelling reasons, supported by specific facts and legal 1 the application to file documents under seal must be provided by declaration. 2 Any document that is not confidential, privileged, or otherwise protectable in 3 its entirety will not be filed under seal if the confidential portions can be redacted. 4 If documents can be redacted, then a redacted version for public viewing, omitting 5 only the confidential, privileged, or otherwise protectable portions of the document, 6 shall be filed. Any application that seeks to file documents under seal in their 7 entirety should include an explanation of why redaction is not feasible. 8 2. DEFINITIONS 9 2.1 Action: The subject federal lawsuit. 10 2.2 Challenging Party: A Party or Non-Party that challenges the 11 designation of information or items under this Order. 12 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 13 how it is generated, stored or maintained) or tangible things that qualify for 14 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 15 the Good Cause Statement. 16 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 17 their support staff). 18 2.5 Designating Party: A Party or Non-Party that designates information or 19 items that it produces in disclosures or in responses to discovery as 20 “CONFIDENTIAL.” 21 2.6 Disclosure or Discovery Material: All items or information, regardless 22 of the medium or manner in which it is generated, stored, or maintained (including, 23 among other things, testimony, transcripts, and tangible things), that are produced or 24 generated in disclosures or responses to discovery in this matter. 25 2.7 Expert: A person with specialized knowledge or experience in a matter 26 pertinent to the litigation who has been retained by a Party or its counsel to serve as 27 an expert witness or as a consultant in this Action. 1 2.8 House Counsel: Attorneys who are employees of a party to this Action. 2 House Counsel does not include Outside Counsel of Record or any other outside 3 counsel. 4 2.9 Non-Party: Any natural person, partnership, corporation, association or 5 other legal entity not named as a Party to this action. 6 2.10 Outside Counsel of Record: Attorneys who are not employees of a 7 party to this Action but are retained to represent or advise a party to this Action and 8 have appeared in this Action on behalf of that party or are affiliated with a law firm 9 that has appeared on behalf of that party, and includes support staff. 10 2.11 Party: Any party to this Action, including all of its officers, directors, 11 employees, consultants, retained experts, and Outside Counsel of Record (and their 12 support staffs). 13 2.12 Producing Party: A Party or Non-Party that produces Disclosure or 14 Discovery Material in this Action. 15 2.13 Professional Vendors: Persons or entities that provide litigation 16 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 17 demonstrations, and organizing, storing, or retrieving data in any form or medium) 18 and their employees and subcontractors. 19 2.14 Protected Material: Any Disclosure or Discovery Material that is 20 designated as “CONFIDENTIAL.” 21 2.15 Receiving Party: A Party that receives Disclosure or Discovery 22 Material from a Producing Party. 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only 25 Protected Material (as defined above), but also (1) any information copied or 26 extracted from Protected Material; (2) all copies, excerpts, summaries, or 27 compilations of Protected Material; and (3) any testimony, conversations, or 1 Any use of Protected Material at trial shall be governed by the orders of the 2 trial judge. This Order does not govern the use of Protected Material at trial. 3 4. DURATION 4 FINAL DISPOSITION of the action is defined as the conclusion of any 5 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal 6 has run. Except as set forth below, the terms of this protective order apply through 7 FINAL DISPOSITION of the action. The parties may stipulate that the they will be 8 contractually bound by the terms of this agreement beyond FINAL DISPOSITION, 9 but will have to file a separate action for enforcement of the agreement once all 10 proceedings in this case are complete. 11 Once a case proceeds to trial, information that was designated as 12 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 13 as an exhibit at trial becomes public and will be presumptively available to all 14 members of the public, including the press, unless compelling reasons supported by 15 specific factual findings to proceed otherwise are made to the trial judge in advance 16 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 17 showing for sealing documents produced in discovery from “compelling reasons” 18 standard when merits-related documents are part of court record). Accordingly, for 19 such materials, the terms of this protective order do not extend beyond the 20 commencement of the trial. 21 5. DESIGNATING PROTECTED MATERIAL 22 5.1 Exercise of Restraint and Care in Designating Material for Protection. 23 Each Party or Non-Party that designates information or items for protection under 24 this Order must take care to limit any such designation to specific material that 25 qualifies under the appropriate standards. The Designating Party must designate for 26 protection only those parts of material, documents, items or oral or written 27 communications that qualify so that other portions of the material, documents, items 1 within the ambit of this Order. 2 Mass, indiscriminate or routinized designations are prohibited. Designations 3 that are shown to be clearly unjustified or that have been made for an improper 4 purpose (e.g., to unnecessarily encumber the case development process or to impose 5 unnecessary expenses and burdens on other parties) may expose the Designating 6 Party to sanctions. 7 If it comes to a Designating Party’s attention that information or items that it 8 designated for protection do not qualify for protection, that Designating Party must 9 promptly notify all other Parties that it is withdrawing the inapplicable designation. 10 5.2 Manner and Timing of Designations. Except as otherwise provided in 11 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 12 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 13 under this Order must be clearly so designated before the material is disclosed or 14 produced. 15 Designation in conformity with this Order requires: 16 (a) For information in documentary form (e.g., paper or electronic 17 documents, but excluding transcripts of depositions or other pretrial or trial 18 proceedings), that the Producing Party affix at a minimum, the legend 19 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 20 contains protected material. If only a portion of the material on a page qualifies for 21 protection, the Producing Party also must clearly identify the protected portion(s) 22 (e.g., by making appropriate markings in the margins). 23 A Party or Non-Party that makes original documents available for 24 inspection need not designate them for protection until after the inspecting Party has 25 indicated which documents it would like copied and produced. During the 26 inspection and before the designation, all of the material made available for 27 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 1 determine which documents, or portions thereof, qualify for protection under this 2 Order. Then, before producing the specified documents, the Producing Party must 3 affix the “CONFIDENTIAL legend” to each page that contains Protected Material. 4 If only a portion of the material on a page qualifies for protection, the Producing 5 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 6 markings in the margins). 7 (b) For testimony given in depositions that the Designating Party 8 identifies the Disclosure or Discovery Material on the record, before the close of the 9 deposition all protected testimony. 10 (c) For information produced in some form other than documentary 11 and for any other tangible items, that the Producing Party affix in a prominent place 12 on the exterior of the container or containers in which the information is stored the 13 legend “CONFIDENTIAL.” If only a portion or portions of the information 14 warrants protection, the Producing Party, to the extent practicable, shall identify the 15 protected portion(s). 16 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 17 failure to designate qualified information or items does not, standing alone, waive 18 the Designating Party’s right to secure protection under this Order for such material. 19 Upon timely correction of a designation, the Receiving Party must make reasonable 20 efforts to assure that the material is treated in accordance with the provisions of this 21 Order. 22 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 24 designation of confidentiality at any time that is consistent with the Court’s 25 Scheduling Order, or if no date is provided in the Scheduling Order, no later than 26 discovery cut-off date as ordered by the Court. 27 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 1 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 2 joint stipulation pursuant to Local Rule 37-2. 3 6.4 The burden of persuasion in any such challenge proceeding shall be on 4 the Designating Party. Frivolous challenges, and those made for an improper 5 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 6 parties) may expose the Challenging Party to sanctions. Unless the Designating 7 Party has waived or withdrawn the confidentiality designation, all parties shall 8 continue to afford the material in question the level of protection to which it is 9 entitled under the Producing Party’s designation until the Court rules on the 10 challenge. 11 7. ACCESS TO AND USE OF PROTECTED MATERIAL 12 7.1 Basic Principles. A Receiving Party may use Protected Material that is 13 disclosed or produced by another Party or by a Non-Party in connection with this 14 Action only for prosecuting, defending or attempting to settle this Action. Such 15 Protected Material may be disclosed only to the categories of persons and under the 16 conditions described in this Order. When the Action has been terminated, a 17 Receiving Party must comply with the provisions of section 13 below (FINAL 18 DISPOSITION). 19 Protected Material must be stored and maintained by a Receiving Party at a 20 location and in a secure manner that ensures that access is limited to the persons 21 authorized under this Order. 22 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 23 otherwise ordered by the court or permitted in writing by the Designating Party, a 24 Receiving Party may disclose any information or item designated 25 “CONFIDENTIAL” only to: 26 (a) The Receiving Party’s Outside Counsel of Record in this Action, as 27 well as employees of said Outside Counsel of Record to whom it is reasonably 1 (b) The officers, directors, and employees (including House Counsel) of 2 the Receiving Party to whom disclosure is reasonably necessary for this Action; 3 (c) Experts (as defined in this Order) of the Receiving Party to whom 4 disclosure is reasonably necessary for this Action and who have signed the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 6 (d) The court and its personnel; 7 (e) Court reporters and their staff; 8 (f) Professional jury or trial consultants, mock jurors, and Professional 9 Vendors to whom disclosure is reasonably necessary for this Action and who have 10 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 (g) The author or recipient of a document containing the information or a 12 custodian or other person who otherwise possessed or knew the information; 13 (h) During their depositions, witnesses, and attorneys for witnesses, in the 14 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 15 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 16 not be permitted to keep any confidential information unless they sign the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 18 agreed by the Designating Party or ordered by the court. Pages of transcribed 19 deposition testimony or exhibits to depositions that reveal Protected Material may 20 be separately bound by the court reporter and may not be disclosed to anyone except 21 as permitted under this Stipulated Protective Order; and 22 (i) Any mediator or settlement officer, and their supporting personnel, 23 mutually agreed upon by any of the parties engaged in settlement discussions. 24 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 25 IN OTHER LITIGATION 26 If a Party is served with a subpoena or a court order issued in other litigation 27 that compels disclosure of any information or items designated in this Action as 1 (a) Promptly notify in writing the Designating Party. Such notification 2 shall include a copy of the subpoena or court order; 3 (b) Promptly notify in writing the party who caused the subpoena or order 4 to issue in the other litigation that some or all of the material covered by the 5 subpoena or order is subject to this Protective Order. Such notification shall include 6 a copy of this Stipulated Protective Order; and 7 (c) Cooperate with respect to all reasonable procedures sought to be 8 pursued by the Designating Party whose Protected Material may be affected. 9 If the Designating Party timely seeks a protective order, the Party served with 10 the subpoena or court order shall not produce any information designated in this 11 action as “CONFIDENTIAL” before a determination by the court from which the 12 subpoena or order issued, unless the Party has obtained the Designating Party’s 13 permission. The Designating Party shall bear the burden and expense of seeking 14 protection in that court of its confidential material and nothing in these provisions 15 should be construed as authorizing or encouraging a Receiving Party in this Action 16 to disobey a lawful directive from another court. 17 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 18 PRODUCED IN THIS LITIGATION 19 (a) The terms of this Order are applicable to information produced by a 20 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 21 produced by Non-Parties in connection with this litigation is protected by the 22 remedies and relief provided by this Order. Nothing in these provisions should be 23 construed as prohibiting a Non-Party from seeking additional protections. 24 (b) In the event that a Party is required, by a valid discovery request, to 25 produce a Non-Party’s confidential information in its possession, and the Party is 26 subject to an agreement with the Non-Party not to produce the Non-Party’s 27 confidential information, then the Party shall: 1 that some or all of the information requested is subject to a confidentiality 2 agreement with a Non-Party; 3 (2) Promptly provide the Non-Party with a copy of the Stipulated 4 Protective Order in this Action, the relevant discovery request(s), and a reasonably 5 specific description of the information requested; and 6 (3) Make the information requested available for inspection by the 7 Non-Party, if requested. 8 (c) If the Non-Party fails to seek a protective order from this court within 9 14 days of receiving the notice and accompanying information, the Receiving Party 10 may produce the Non-Party’s confidential information responsive to the discovery 11 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 12 not produce any information in its possession or control that is subject to the 13 confidentiality agreement with the Non-Party before a determination by the court. 14 Absent a court order to the contrary, the Non-Party shall bear the burden and 15 expense of seeking protection in this court of its Protected Material. 16 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 17 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 18 Protected Material to any person or in any circumstance not authorized under this 19 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 20 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 21 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 22 persons to whom unauthorized disclosures were made of all the terms of this Order, 23 and (d) request such person or persons to execute the “Acknowledgment and 24 Agreement to Be Bound” that is attached hereto as Exhibit A. 25 /// 26 /// 27 /// 1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 2 PROTECTED MATERIAL 3 When a Producing Party gives notice to Receiving Parties that certain 4 inadvertently produced material is subject to a claim of privilege or other protection, 5 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 6 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 7 procedure may be established in an e-discovery order that provides for production 8 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 9 (e), insofar as the parties reach an agreement on the effect of disclosure of a 10 communication or information covered by the attorney-client privilege or work 11 product protection, the parties may incorporate their agreement in the stipulated 12 protective order submitted to the court. 13 12. MISCELLANEOUS 14 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 15 person to seek its modification by the Court in the future. 16 12.2 Right to Assert Other Objections. By stipulating to the entry of this 17 Protective Order, no Party waives any right it otherwise would have to object to 18 disclosing or producing any information or item on any ground not addressed in this 19 Stipulated Protective Order. Similarly, no Party waives any right to object on any 20 ground to use in evidence of any of the material covered by this Protective Order. 21 12.3 Filing Protected Material. A Party that seeks to file under seal any 22 Protected Material must comply with Local Civil Rule 79-5. Protected Material 23 may only be filed under seal pursuant to a court order authorizing the sealing of the 24 specific Protected Material at issue. If a Party’s request to file Protected Material 25 under seal is denied by the court, then the Receiving Party may file the information 26 in the public record unless otherwise instructed by the court. 27 /// 1 13. FINAL DISPOSITION 2 Within 60 days after the final disposition of this Action, as defined in 3 paragraph 4, each Receiving Party must return all Protected Material to the 4 Producing Party or destroy such material. As used in this subdivision, “all Protected 5 Material” includes all copies, abstracts, compilations, summaries, and any other 6 format reproducing or capturing any of the Protected Material. Whether the 7 Protected Material is returned or destroyed, the Receiving Party must submit a 8 written certification to the Producing Party (and, if not the same person or entity, to 9 the Designating Party) by the 60 day deadline that (1) identifies (by category, where 10 appropriate) all the Protected Material that was returned or destroyed and (2) affirms 11 that the Receiving Party has not retained any copies, abstracts, compilations, 12 summaries or any other format reproducing or capturing any of the Protected 13 Material. Notwithstanding this provision, Counsel are entitled to retain an archival 14 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 15 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 16 work product, and consultant and expert work product, even if such materials 17 contain Protected Material. Any such archival copies that contain or constitute 18 Protected Material remain subject to this Protective Order as set forth in Section 4 19 (DURATION). 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 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 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 6 || DATED: July 30, 2020 7 /s/ Jordan Hankey Jordan Hankey 9 || Attorney for Plaintiff ELIZABETH REED 10 11 DATED: July 30, 2020 /s/ Jessica Farley 13 14 || Sean Burnett /Jessica Farley = 5 Attorneys for Defendant COSTCO WHOLESALE CORPORATION

16 17 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 18 19 || DATED: August 20, 2020 20 21 Ura 22 23 || UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on [date] in the case of ___________ [insert formal name of the case and the 9 number and initials assigned to it by the court]. I agree to comply with and to be 10 bound by all the terms of this Stipulated Protective Order and I understand and 11 acknowledge that failure to so comply could expose me to sanctions and punishment 12 in the nature of contempt. I solemnly promise that I will not disclose in any manner 13 any information or item that is subject to this Stipulated Protective Order to any 14 person or entity except in strict compliance 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