1

2

3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 5 6 ARABELLA HOGG, Case No. 2:19-cv-10369-DSF-GJS

7 Plaintiff,

ORDER RE: STIPULATED

8 v. PROTECTIVE ORDER

9 TARGET CORPORATION; and DOES 1 to 10 inclusive, 10 Defendants. 11

12 1. A. PURPOSES AND LIMITATIONS 13 Discovery in this action is likely to involve production of confidential, 14 proprietary or private information for which special protection from public 15 disclosure and from use for any purpose other than prosecuting this litigation may 16 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 17 enter the following Stipulated Protective Order. The parties acknowledge that this 18 Order does not confer blanket protections on all disclosures or responses to 19 discovery and that the protection it affords from public disclosure and use extends 20 only to the limited information or items that are entitled to confidential treatment 21 under the applicable legal principles. 22 B. GOOD CAUSE STATEMENT 23 This action is likely to involve trade secrets, customer and pricing lists and 24 other valuable research, development, commercial, financial, technical and/or 25 proprietary information for which special protection from public disclosure and 26 form use for any purpose other than prosecution of this action is warranted. Such 27 confidential and proprietary materials and information consist of, among other 1 confidential business practices, or other confidential research, development, or 2 commercial information (including information implicating privacy rights of third 3 parties), information otherwise generally unavailable to the public, or which may be 4 privileged or otherwise protected from disclosure under state or federal statutes, 5 court rules, case decisions, or common law. Accordingly, to expedite the flow of 6 information, to facilitate the prompt resolution of disputes over confidentiality of 7 discovery materials, to adequately protect information the parties are entitled to keep 8 confidential, to ensure that the parties are permitted reasonable necessary uses of 9 such material in preparation for and in the conduct of trial, to address their handling 10 at the end of the litigation, and serve the ends of justice, a protective order for such 11 information is justified in this matter. It is the intent of the parties that information 12 will not be designated as confidential for tactical reasons and that nothing be so 13 designated without a good faith belief that it has been maintained in a confidential, 14 non-public manner, and there is good cause why it should not be part of the public 15 record of this case. 16 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 17 The parties further acknowledge, as set forth in Section 12.3, below, that this 18 Stipulated Protective Order does not entitle them to file confidential information 19 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 20 and the standards that will be applied when a party seeks permission from the court 21 to file material under seal. 22 There is a strong presumption that the public has a right of access to judicial 23 proceedings and records in civil cases. In connection with non-dispositive motions, 24 good cause must be shown to support a filing under seal. See Kamakana v. City and 25 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 26 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 27 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 1 reasons with proper evidentiary support and legal justification, must be made with 2 respect to Protected Material that a party seeks to file under seal. The parties’ mere 3 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 4 without the submission of competent evidence by declaration, establishing that the 5 material sought to be filed under seal qualifies as confidential, privileged, or 6 otherwise protectable—constitute good cause. 7 Further, if a party requests sealing related to a dispositive motion or trial, then 8 compelling reasons, not only good cause, for the sealing must be shown, and the 9 relief sought shall be narrowly tailored to serve the specific interest to be protected. 10 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 11 each item or type of information, document, or thing sought to be filed or introduced 12 under seal in connection with a dispositive motion or trial, the party seeking 13 protection must articulate compelling reasons, supported by specific facts and legal 14 justification, for the requested sealing order. Again, competent evidence supporting 15 the application to file documents under seal must be provided by declaration. 16 Any document that is not confidential, privileged, or otherwise protectable in 17 its entirety will not be filed under seal if the confidential portions can be redacted. 18 If documents can be redacted, then a redacted version for public viewing, omitting 19 only the confidential, privileged, or otherwise protectable portions of the document, 20 shall be filed. Any application that seeks to file documents under seal in their 21 entirety should include an explanation of why redaction is not feasible. 22 2. DEFINITIONS 23 2.1 Action: Arabella Hogg v. Target Corporation 24 2.2 Challenging Party: a Party or Non-Party that challenges the 25 designation of information or items under this Order. 26 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 27 how it is generated, stored or maintained) or tangible things that qualify for 1 the Good Cause Statement. 2 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 3 their support staff). 4 2.5 Designating Party: a Party or Non-Party that designates information or 5 items that it produces in disclosures or in responses to discovery as 6 “CONFIDENTIAL.” 7 2.6 Disclosure or Discovery Material: all items or information, regardless 8 of the medium or manner in which it is generated, stored, or maintained (including, 9 among other things, testimony, transcripts, and tangible things), that are produced or 10 generated in disclosures or responses to discovery in this matter. 11 2.7 Expert: a person with specialized knowledge or experience in a matter 12 pertinent to the litigation who has been retained by a Party or its counsel to serve as 13 an expert witness or as a consultant in this Action. 14 2.8 House Counsel: attorneys who are employees of a party to this Action. 15 House Counsel does not include Outside Counsel of Record or any other outside 16 counsel. 17 2.9 Non-Party: any natural person, partnership, corporation, association or 18 other legal entity not named as a Party to this action. 19 2.10 Outside Counsel of Record: attorneys who are not employees of a 20 party to this Action but are retained to represent or advise a party to this Action and 21 have appeared in this Action on behalf of that party or are affiliated with a law firm 22 that has appeared on behalf of that party, and includes support staff. 23 2.11 Party: any party to this Action, including all of its officers, directors, 24 employees, consultants, retained experts, and Outside Counsel of Record (and their 25 support staffs). 26 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 27 Discovery Material in this Action. 1 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 2 demonstrations, and organizing, storing, or retrieving data in any form or medium) 3 and their employees and subcontractors. 4 2.14 Protected Material: any Disclosure or Discovery Material that is 5 designated as “CONFIDENTIAL.” 6 2.15 Receiving Party: a Party that receives Disclosure or Discovery 7 Material from a Producing Party. 8 3. SCOPE The protections conferred by this Stipulation and Order cover not only 9 Protected Material (as defined above), but also (1) any information copied or 10 extracted from Protected Material; (2) all copies, excerpts, summaries, or 11 compilations of Protected Material; and (3) any testimony, conversations, or 12 presentations by Parties or their Counsel that might reveal Protected Material. 13 Any use of Protected Material at trial shall be governed by the orders of the 14 trial judge. This Order does not govern the use of Protected Material at trial. 15 4. DURATION 16 FINAL DISPOSITION of the action is defined as the conclusion of any 17 appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal 18 has run. Except as set forth below, the terms of this protective order apply through 19 FINAL DISPOSITION of the action. The parties may stipulate that the they will be 20 contractually bound by the terms of this agreement beyond FINAL DISPOSITION, 21 but will have to file a separate action for enforcement of the agreement once all 22 proceedings in this case are complete. 23 Once a case proceeds to trial, information that was designated as 24 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 25 as an exhibit at trial becomes public and will be presumptively available to all 26 members of the public, including the press, unless compelling reasons supported by 27 specific factual findings to proceed otherwise are made to the trial judge in advance 1 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 2 showing for sealing documents produced in discovery from “compelling reasons” 3 standard when merits-related documents are part of court record). Accordingly, for 4 such materials, the terms of this protective order do not extend beyond the 5 commencement of the trial. 6 5. DESIGNATING PROTECTED MATERIAL 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. 8 Each Party or Non-Party that designates information or items for protection under 9 this Order must take care to limit any such designation to specific material that 10 qualifies under the appropriate standards. The Designating Party must designate for 11 protection only those parts of material, documents, items or oral or written 12 communications that qualify so that other portions of the material, documents, items 13 or communications for which protection is not warranted are not swept unjustifiably 14 within the ambit of this Order. 15 Mass, indiscriminate or routinized designations are prohibited. Designations 16 that are shown to be clearly unjustified or that have been made for an improper 17 purpose (e.g., to unnecessarily encumber the case development process or to impose 18 unnecessary expenses and burdens on other parties) may expose the Designating 19 Party to sanctions. 20 If it comes to a Designating Party’s attention that information or items that it 21 designated for protection do not qualify for protection, that Designating Party must 22 promptly notify all other Parties that it is withdrawing the inapplicable designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in 24 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 25 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 26 under this Order must be clearly so designated before the material is disclosed or 27 produced. 1 (a) for information in documentary form (e.g., paper or electronic documents, 2 but excluding transcripts of depositions or other pretrial or trial proceedings), that 3 the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 4 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 5 portion of the material on a page qualifies for protection, the Producing Party also 6 must clearly identify the protected portion(s) (e.g., by making appropriate markings 7 in the margins). 8 A Party or Non-Party that makes original documents available for inspection 9 need not designate them for protection until after the inspecting Party has indicated 10 which documents it would like copied and produced. During the inspection and 11 before the designation, all of the material made available for inspection shall be 12 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 13 documents it wants copied and produced, the Producing Party must determine which 14 documents, or portions thereof, qualify for protection under this Order. Then, 15 before producing the specified documents, the Producing Party must affix the 16 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 17 portion of the material on a page qualifies for protection, the Producing Party also 18 must clearly identify the protected portion(s) (e.g., by making appropriate markings 19 in the margins). 20 (b) for testimony given in depositions that the Designating Party identifies 21 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 for 24 any other tangible items, that the Producing Party affix in a prominent place on the 25 exterior of the container or containers in which the information is stored the legend 26 “CONFIDENTIAL.” If only a portion or portions of the information warrants 27 protection, the Producing Party, to the extent practicable, shall identify the protected 1 5.3 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 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 8 6.1 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 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 12 resolution process under Local Rule 37.1 et seq. 13 6.3 The burden of persuasion in any such challenge proceeding shall be on 14 the Designating Party. Frivolous challenges, and those made for an improper 15 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 16 parties) may expose the Challenging Party to sanctions. Unless the Designating 17 Party has waived or withdrawn the confidentiality designation, all parties shall 18 continue to afford the material in question the level of protection to which it is 19 entitled under the Producing Party’s designation until the Court rules on the 20 challenge. 21 7. ACCESS TO AND USE OF PROTECTED MATERIAL 22 7.1 Basic Principles. A Receiving Party may use Protected Material that is 23 disclosed or produced by another Party or by a Non-Party in connection with this 24 Action only for prosecuting, defending or attempting to settle this Action. Such 25 Protected Material may be disclosed only to the categories of persons and under the 26 conditions described in this Order. When the Action has been terminated, a 27 Receiving Party must comply with the provisions of section 13 below (FINAL 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 7.2 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 well 9 as employees of said Outside Counsel of Record to whom it is reasonably necessary 10 to disclose the information for this Action; 11 (b) the officers, directors, and employees (including House Counsel) of the 12 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 the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 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 the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 21 (g) the author or recipient of a document containing the information or a 22 custodian or other person who otherwise possessed or knew the information; 23 (h) during their depositions, witnesses, and attorneys for witnesses, in the 24 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 25 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 26 not be permitted to keep any confidential information unless they sign the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 1 deposition testimony or exhibits to depositions that reveal Protected Material may 2 be separately bound by the court reporter and may not be disclosed to anyone except 3 as permitted under this Stipulated Protective Order; and 4 (i) any mediator or settlement officer, and their supporting personnel, 5 mutually agreed upon by any of the parties engaged in settlement discussions. 6 8. 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 shall 12 include a copy of the subpoena or court order; 13 (b) promptly notify in writing the party who caused the subpoena or order to 14 issue in the other litigation that some or all of the material covered by the subpoena 15 or order is subject to this Protective Order. Such notification shall include a copy of 16 this Stipulated Protective Order; and 17 (c) cooperate with respect to all reasonable procedures sought to be pursued 18 by the Designating Party whose Protected Material may be affected. 19 If the Designating Party timely seeks a protective order, the Party served with 20 the subpoena or court order shall not produce any information designated in this 21 action as “CONFIDENTIAL” before a determination by the court from which the 22 subpoena or order issued, unless the Party has obtained the Designating Party’s 23 permission. The Designating Party shall bear the burden and expense of seeking 24 protection in that court of its confidential material and nothing in these provisions 25 should be construed as authorizing or encouraging a Receiving Party in this Action 26 to disobey a lawful directive from another court. 27 /// 1 9. 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 Non- 4 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-Party 13 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 14 21 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 27 expense of seeking protection in this court of its Protected Material. 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED 2 MATERIAL 3 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 4 Protected Material to any person or in any circumstance not authorized under this 5 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 6 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 7 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 8 persons to whom unauthorized disclosures were made of all the terms of this Order, 9 and (d) request such person or persons to execute the “Acknowledgment and 10 Agreement to Be Bound” that is attached hereto as Exhibit A. 11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR 12 OTHERWISE PROTECTED MATERIAL 13 When a Producing Party gives notice to Receiving Parties that certain 14 inadvertently produced material is subject to a claim of privilege or other protection, 15 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 16 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 17 procedure may be established in an e-discovery order that provides for production 18 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 19 (e), insofar as the parties reach an agreement on the effect of disclosure of a 20 communication or information covered by the attorney-client privilege or work 21 product protection, the parties may incorporate their agreement in the stipulated 22 protective order submitted to the court. 23 12. MISCELLANEOUS 24 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 25 person to seek its modification by the Court in the future. 26 12.2 Right to Assert Other Objections. By stipulating to the entry of this 27 Protective Order, no Party waives any right it otherwise would have to object to 1 Stipulated Protective Order. Similarly, no Party waives any right to object on any 2 ground to use in evidence of any of the material covered by this Protective Order. 3 12.3 Filing Protected Material. A Party that seeks to file under seal any 4 Protected Material must comply with Local Civil Rule 79-5. Protected Material 5 may only be filed under seal pursuant to a court order authorizing the sealing of the 6 specific Protected Material at issue. If a Party’s request to file Protected Material 7 under seal is denied by the court, then the Receiving Party may file the information 8 in the public record unless otherwise instructed by the court. 9 13. FINAL DISPOSITION 10 After the final disposition of this Action, as defined in paragraph 4, within 60 11 days of a written request by the Designating Party, each Receiving Party must return 12 all Protected Material to the Producing Party or destroy such material. As used in 13 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 14 summaries, and any other format reproducing or capturing any of the Protected 15 Material. Whether the Protected Material is returned or destroyed, the Receiving 16 Party must submit a written certification to the Producing Party (and, if not the same 17 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 18 (by category, where appropriate) all the Protected Material that was returned or 19 destroyed and (2) affirms that the Receiving Party has not retained any copies, 20 abstracts, compilations, summaries or any other format reproducing or capturing any 21 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 22 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 23 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 24 reports, attorney work product, and consultant and expert work product, even if such 25 materials contain Protected Material. Any such archival copies that contain or 26 constitute Protected Material remain subject to this Protective Order as set forth in 27 Section 4 (DURATION). 1 14. VIOLATION 2 Any violation of this Order may be punished by appropriate measures 3 || including, without limitation, contempt proceedings and/or monetary sanctions. 4 5 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 6 DATED: January 22, 2021 8 GAIL J. STANDISH 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 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 Arabella Hogg v. Target Corporation, et al., Case No. Case 9 No. 2:19-cv-10369-DSF-GJS. I agree to comply with and to be bound by all the 10 terms of this Stipulated Protective Order and I understand and acknowledge that 11 failure to so comply could expose me to sanctions and punishment in the nature of 12 contempt. I solemnly promise that I will not disclose in any manner any 13 information or item that is subject to this Stipulated Protective Order to any person 14 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