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Michael Rodman, On Behalf of Himself and All Others Similarly Situated v. Safeway Inc

August 6, 2012

MICHAEL RODMAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
SAFEWAY INC.,
DEFENDANT.



The opinion of the court was delivered by: Jeffrey S. White United States Magistrate Judge

STIPULATED PROTECTIVE ORDER

1. PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be 5 warranted. Accordingly, the parties stipulate to and petition the court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does not 7 confer blanket protections on all disclosures or responses to discovery and that the 8 protection it affords from public disclosure and use extends only to the limited information 9 or items that are entitled to confidential treatment under the applicable legal principles.

The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated 11 Protective Order does not entitle them to file confidential information under seal; Civil 12 Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and 13 the standards that will be applied when a party seeks permission from the court to file 14 material under seal.

2. DEFINITIONS

2.1. Challenging Party: a Party or Non-Party that challenges the 17 designation of information or items under this Order. 18 2.2. "CONFIDENTIAL" Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for 20 protection under Federal Rule of Civil Procedure 26(c). 21

2.3. Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 23

2.4. Designating Party: a Party or Non-Party that designates information 24 or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL" 25 or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." 26 2.5. Disclosure or Discovery Material: all items or information, 27 regardless of the medium or manner in which it is generated, stored, or maintained 28 (including, among other things, testimony, transcripts, and tangible things), that are 2 produced or generated in disclosures or responses to discovery in this matter. 3

2.6. Expert: a person with specialized knowledge or experience in a 4 matter pertinent to the litigation who (1) has been retained by a Party or its counsel to 5 serve as an expert witness or as a consultant in this action, (2) is not a past or current 6 employee of a Party or of a Party's competitor, and (3) at the time of retention, is not 7 anticipated to become an employee of a Party or of a Party's competitor. 8

2.7. "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY"

Information or Items: extremely sensitive "Confidential Information or Items," 10 disclosure of which to another Party or Non-Party would create a substantial risk of serious 11 harm that could not be avoided by less restrictive means. 12

2.8. House Counsel: attorneys who are employees of a party to this 13 action. House Counsel does not include Outside Counsel of Record or any other outside 14 counsel. 15

2.9. Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10. Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have 19 appeared in this action on behalf of that party or are affiliated with a law firm which has 20 appeared on behalf of that party. 21

2.11. Party: any party to this action, including all of its officers, directors, 22 employees, consultants, retained experts, and Outside Counsel of Record (and their support 23 staffs). 24 2.12. Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 26

2.13. Professional Vendors: persons or entities that provide litigation 25 27 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 28 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 2 their employees and subcontractors. 3

2.14. Protected Material: any Disclosure or Discovery Material that is 4 designated as "CONFIDENTIAL" or as "HIGHLY CONFIDENTIAL -- ATTORNEYS' 5 EYES ONLY." 6 2.15. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 8

3. SCOPE

The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from 11 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 12 Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel 13 that might reveal Protected Material. However, the protections conferred by this 14 Stipulation and Order do not cover the following information: (a) any information that is 15 in the public domain at the time of disclosure to a Receiving Party or becomes part of the 16 public domain after its disclosure to a Receiving Party as a result of publication not 17 involving a violation of this Order, including becoming part of the public record through 18 trial or otherwise; and (b) any information known to the Receiving Party prior to the 19 disclosure or obtained by the Receiving Party after the disclosure from a source who 20 obtained the information lawfully and under no obligation of confidentiality to the 21 Designating Party. Any use of Protected Material at trial shall be governed by a separate 22 agreement or order. 23

4. DURATION

Even after final disposition of this litigation, the confidentiality obligations imposed 25 by this Order shall remain in effect until a Designating Party agrees otherwise in writing or 26 a court order otherwise directs. Final disposition shall be deemed to be the later of (1) 27 dismissal of all claims and defenses in this action, with or without prejudice; and (2) final 28 judgment in this action after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or 2 applications for extension of time pursuant to applicable law. 3

5. DESIGNATING PROTECTED MATERIAL

5.1. Exercise of Restraint and Care in Designating Material for Protection: Each Party or Non-Party that designates information or items for protection 6 under this Order must take care to limit any such designation to specific material that 7 qualifies under the appropriate standards. To the extent it is practical to do so, the Designating Party must designate for protection only those parts of material, documents, 9 items, or oral or written communications that qualify -- so that other portions of the 10 material, documents, items, or communications for which protection is not warranted are 11 not swept unjustifiably within the ambit of this Order. 12

Mass, indiscriminate, or routinized designations are prohibited. Designations that 13 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., 14 to unnecessarily encumber or retard the case development process or to impose 15 unnecessary expenses and burdens on other parties) expose the Designating Party to 16 sanctions. 17

If it comes to a Designating Party's attention that information or items that it 18 designated for protection do not qualify for protection at all or do not qualify for the level 19 of protection initially asserted, that Designating Party must promptly notify all other 20 parties that it is withdrawing the mistaken designation. 21 Manner and Timing of Designations: Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 23 Disclosure or Discovery Material that qualifies for protection under this Order must be 24 clearly so designated before the material is disclosed or produced. 25 Designation in conformity with this Order requires:

(a) For information in documentary form (e.g., paper or electronic 27 documents, but excluding transcripts of depositions or other pretrial or trial proceedings), 28 the Producing Party must affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" to each page that contains protected 2 material. If only a portion or portions of the material on a page qualifies for protection, the 3

Producing Party also must clearly identify the protected portion(s) (e.g., by making 4 appropriate markings in the margins). 5

A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has 7 indicated which material it would like copied and produced. During the inspection and 8 before the designation, all of the material made available for inspection shall be deemed "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." After the inspecting Party 10 has identified the documents it wants copied and produced, the Producing Party must 11 determine which documents or portions thereof qualify for protection under this Order. 12

Then, before producing the specified documents, the Producing Party must affix the 13 appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' 14 EYES ONLY") to each page that contains Protected Material. If only a portion or portions 15 of the material on a page qualifies for protection, the Producing Party also must clearly 16 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 17

(b) For testimony given in deposition or in other pretrial or trial 18 proceedings, the Designating Party shall identify on the record, before the close of the 19 deposition, hearing, or other proceeding, all protected testimony and specify the level of 20 protection being asserted. When it is impractical to identify separately each portion of 21 testimony that is entitled to protection and it appears that substantial portions of the 22 testimony may qualify for protection, the Designating Party may invoke on the record 23

(before the deposition, hearing, or other proceeding is concluded), or in writing 3 business 24 days after the deposition has concluded, a right to have up to 21 days after the deposition is 25 concluded to identify the specific portions of the testimony as to which protection is sought 26 and to specify the level of protection being asserted. Only those portions of the testimony 27 that are appropriately designated for protection within the 21 days shall be covered by the 28 provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, 2 that the entire transcript shall be treated as "CONFIDENTIAL" or "HIGHLY 3 CONFIDENTIAL -- ATTORNEYS' EYES ONLY." 4

Parties shall give the other parties notice if they reasonably expect a deposition, 5 hearing or other proceeding to include Protected Material so that the other parties can 6 ensure that only authorized individuals who have signed the "Acknowledgment and 7

Agreement to Be Bound" (Exhibit A) are present at those proceedings. The use of a 8 document as an exhibit at a deposition shall not in any way affect its designation as 9

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." 10

Transcripts containing Protected Material shall have an obvious legend on the title 11 page that the transcript contains Protected Material, and the title page shall be followed by 12 a list of all pages (including line numbers as appropriate) that have been designated as 13 Protected Material and the level of protection being asserted by the Designating Party. 14

The Designating Party shall inform the court reporter of these requirements. Any 15 transcript that is prepared before the expiration of a 21-day period for designation shall be 16 treated during that period as if it had been designated "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" in its entirety unless otherwise agreed. After the ...


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