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Nancy Dardarian, Individually and On Behalf of All Others Similarly Situated v. Officemax North America

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION


November 14, 2012

NANCY DARDARIAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
OFFICEMAX NORTH AMERICA, INC., AN OHIO CORPORATION,
DEFENDANT.
NATHAN THOMS, INDIVIDUALLY AND ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
OFFICEMAX NORTH AMERICA, INC., AN OHIO CORPORATION; AND
DOES 2 THROUGH 50, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Hon. Yvonne Gonzalez Rogers United States District Judge

SEYFARTH SHAW LLP Michael J. Burns (SBN 172614) 2 E-mail: mburns@seyfarth.com Giovanna A. Ferrari (SBN 229871) 3 E-mail: gferrari@seyfarth.com 560 Mission Street, 31st Floor 4 San Francisco, California 94105 Telephone: (415) 397-2823 5 Facsimile: (415) 397-8549 6 Jeffrey D. Neumeyer (Admitted Pro Hac Vice) Email: jeffneumeyer@officemax.com 7 Elham Marder (SBN 251981) Email: ElhamMarder@officemax.com 8 OFFICEMAX INCORPORATED 1111 West Jefferson Street, Suite 510 9 Boise, Idaho 83702 Telephone: (208) 388-4177 10 Facsimile: (630) 647-3864 11 Attorneys for Defendant OFFICEMAX NORTH AMERICA, INC. 12 13

MODIFIED STIPULATED PROTECTIVE ORDER

1. PURPOSES AND LIMITATIONS

3 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 warranted.

Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 7 protections on all disclosures or responses to discovery and that the protection it affords from 8 public disclosure and use extends only to the limited information or items that are entitled to 9 confidential treatment under the applicable legal principles. The parties further acknowledge, as 10 set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file 11 confidential information under seal; Civil Local Rule 79-5 and General Order 62 set forth the 12 procedures that must be followed and the standards that will be applied when a party seeks 13 permission from the court to file material under seal. 14

2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 17

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 19 of Civil Procedure 26(c).

21 well as their support staff). 22 it produces in disclosures or in responses to discovery as "CONFIDENTIAL." 24 medium or manner in which it is generated, stored, or maintained (including, among other things, 26 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 27 responses to discovery in this matter. 28

Modified Stipulated Protective Order / Case No. 4:11-CV-00947 YGR 14070053v.1

Disclosure and discovery activity in this action are likely to involve production of Accordingly, the parties hereby stipulate to and petition the court to enter the following 6

2. DEFINITIONS 15

2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

2.4 Designating Party: a Party or Non-Party that designates information or items that

2.5 Disclosure or Discovery Material: all items or information, regardless of the to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as 3 a consultant in this action.

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent

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

7 legal entity not named as a Party to this action. 8 action but are retained to represent or advise a party to this action and have appeared in this 10 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 11 that party.

consultants, retained experts, and Outside Counsel of Record (and their support staffs).

2.8 Non-Party: any natural person, partnership, corporation, association, or other

2.9 Outside Counsel of Record: attorneys who are not employees of a party to this

2.10 Party: any party to this action, including all of its officers, directors, employees,

2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 16

2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 18 organizing, storing, or retrieving data in any form or medium) and their employees and 19 subcontractors.

2.13 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL." 22

3. SCOPE 25

(as defined above), but also (1) any information copied or extracted from Protected Material; (2) 27 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 28 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

Modified Stipulated Protective Order / Case No. 4:11-CV-00947 YGR 14070053v.1

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 24

The protections conferred by this Stipulation and Order cover not only Protected Material However, the protections conferred by this Stipulation and Order do not cover the following 2 information: (a) any information that is in the public domain at the time of disclosure to a 3

Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 4 a result of publication not involving a violation of this Order, including becoming part of the 5 public record through trial or otherwise; and (b) any information known to the Receiving Party 6 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 7 obtained the information lawfully and under no obligation of confidentiality to the Designating 8

4. DURATION 10

11 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 12 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 13 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 14 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 15 action, including the time limits for filing any motions or applications for extension of time 16 pursuant to applicable law. 17

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care 20 to limit any such designation to specific material that qualifies under the appropriate standards. 21

The Designating Party must designate for protection only those parts of material, documents, 22 items, or oral or written communications that qualify -- so that other portions of the material, 23 documents, items, or communications for which protection is not warranted are not swept 24 unjustifiably within the ambit of this Order. 25

26 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 27 unnecessarily encumber or retard the case development process or to impose unnecessary 28 expenses and burdens on other parties) expose the Designating Party to sanctions.

Modified Stipulated Protective Order / Case No. 4:11-CV-00947 YGR 14070053v.1

Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 9

Even after final disposition of this litigation, the confidentiality obligations imposed by

5. DESIGNATING PROTECTED MATERIAL 18

Mass, indiscriminate, or routinized designations are prohibited. Designations that are 2 for protection do not qualify for protection, that Designating Party must promptly notify all other 3

5.2 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, 6

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 7 designated before the material is disclosed or produced. 8

10 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 11

Party affix the legend "CONFIDENTIAL" to each page that contains protected material. If only 12 a portion or portions of the material on a page qualifies for protection, the Producing Party also 13 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 14 margins). 15

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 indicated which 17 material it would like copied and produced. During the inspection and before the designation, all 18 of the material made available for inspection shall be deemed "CONFIDENTIAL." After the 19 inspecting Party has identified the documents it wants copied and produced, the Producing Party 20 must determine which documents, or portions thereof, qualify for protection under this Order. 21

"CONFIDENTIAL" legend to each page that contains Protected Material. If only a portion or 23 portions of the material on a page qualifies for protection, the Producing Party also must clearly 24 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 25

(b) [MODIFIED] for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify [all protected testimony within 14 calendar days 27 of receipt of] the deposition, hearing, or other proceeding transcript. 28

Modified Stipulated Protective Order / Case No. 4:11-CV-00947 YGR 14070053v.1

If it comes to a Designating Party's attention that information or items that it designated Parties that it is withdrawing the mistaken designation. 4

Designation in conformity with this Order requires:

(a) for information in documentary form (e.g., paper or electronic documents, but

Then, before producing the specified documents, the Producing Party must affix the 2 tangible items, that the Producing Party affix in a prominent place on the exterior of the 3 container or containers in which the information or item is stored the legend 4

"CONFIDENTIAL." If only a portion or portions of the information or item warrant protection, 5 the Producing Party, to the extent practicable, shall identify the protected portion(s). 6

7 designate qualified information or items does not, standing alone, waive the Designating Party's 8 right to secure protection under this Order for such material. Upon timely correction of a 9 designation, the Receiving Party must make reasonable efforts to assure that the material is 10 treated in accordance with the provisions of this Order. 11

6.1 [MODIFIED] Timing of Challenges. Any Party or Non-Party may challenge a

13 designation of confidentiality [up to 30 days before trial]. Unless a prompt challenge to a 14

Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial 15 unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a 16

Party does not waive its right to challenge a confidentiality designation by electing not to mount 17 a challenge promptly after the original designation is disclosed. 18

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 19 process by providing written notice of each designation it is challenging and describing the basis 20 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 21 notice must recite that the challenge to confidentiality is being made in accordance with this 22 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 23 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 24 forms of communication are not sufficient) within 14 days of the date of service of notice. In 25 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 26 designation was not proper and must give the Designating Party an opportunity to review the 27 designated material, to reconsider the circumstances, and, if no change in designation is offered, 28 to explain the basis for the chosen designation. A Challenging Party may proceed to the next

Modified Stipulated Protective Order / Case No. 4:11-CV-00947 YGR 14070053v.1

(c) for information produced in some form other than documentary and for any other

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 12

stage of the challenge process only if it has engaged in this meet and confer process first or 2 establishes that the Designating Party is unwilling to participate in the meet and confer process in 3 a timely manner. 4

5 intervention, the parties shall follow the Court's Standing Order in Civil Cases regarding 6

Discovery and Discovery Motions. The parties may file a joint letter brief regarding retaining 7 confidentiality within 21 days of the initial notice of challenge or within 14 days of the parties 8 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. 9

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court

Failure by a Designating Party to file such discovery dispute letter within the applicable 21 or 14 10 day period (set forth above) with the Court shall automatically waive the confidentiality 11 designation for each challenged designation. If, after submitting a joint letter brief, the Court 12 allows that a motion may be filed, any such motion must be accompanied by a competent 13 declaration affirming that the movant has complied with the meet and confer requirements 14 imposed in the preceding paragraph. The Court, in its discretion, may elect to transfer the 15 discovery matter to a Magistrate Judge. 16

17 confidentiality designation at any time if there is good cause for doing so, including a challenge 18 to the designation of a deposition transcript or any portions thereof. If, after submitting a joint 19 letter brief, the Court allows that a motion may be filed, any motion brought pursuant to this 20 provision must be accompanied by a competent declaration affirming that the movant has 21 complied with the meet and confer requirements imposed by the preceding paragraph. The 22

The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 25 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 26 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 27 file letter brief to retain confidentiality as described above, all parties shall continue to afford the

Modified Stipulated Protective Order / Case No. 4:11-CV-00947 YGR 14070053v.1

In addition, the parties may file a joint letter brief regarding a challenge to a Court, in its discretion, may elect to transfer the discovery matter to a Magistrate Judge.

material in question the level of protection to which it is entitled under the Producing Party's 2 designation until the court rules on the challenge. 3

7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this case only for 6 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 7 disclosed only to the categories of persons and under the conditions described in this Order.

7. ACCESS TO AND USE OF PROTECTED MATERIAL 4

When the litigation has been terminated, a Receiving Party must comply with the provisions of 9 section 13 below (FINAL DISPOSITION).

Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 12 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 14 disclose any information or item designated "CONFIDENTIAL" only to: 15

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 17 information for this litigation and who have signed the "Acknowledgment and Agreement to Be

(b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and 24

(d) the court and its personnel;

(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and

Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 28 have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);

Modified Stipulated Protective Order / Case No. 4:11-CV-00947 YGR 14070053v.1

7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise

(a) the Receiving Party's Outside Counsel of Record in this action, as well as Bound" that is attached hereto as Exhibit A; 19

"Acknowledgment and Agreement to Be Bound" (Exhibit A); 22 Agreement to Be Bound" (Exhibit A); 25

necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 4 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 5 separately bound by the court reporter and may not be disclosed to anyone except as permitted 6 under this Stipulated Protective Order. 7

other person who otherwise possessed or knew the information.

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION

(f) during their depositions, witnesses in the action to whom disclosure is reasonably

(g) the author or recipient of a document containing the information or a custodian or 12 disclosure of any information or items designated in this action as "CONFIDENTIAL," that 13

(a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 16 other litigation that some or all of the material covered by the subpoena or order is subject to this 18

(c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. subpoena or court order shall not produce any information designated in this action as 23 "CONFIDENTIAL" before a determination by the court from which the subpoena or order 24 issued, unless the Party has obtained the Designating Party's permission. The Designating Party 25 shall bear the burden and expense of seeking protection in that court of its confidential material -- 26 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 27

Party in this action to disobey a lawful directive from another court.

Modified Stipulated Protective Order / Case No. 4:11-CV-00947 YGR 14070053v.1

If a Party is served with a subpoena or a court order issued in other litigation that compels Party must: 14

(b) promptly notify in writing the party who caused the subpoena or order to issue in the Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 19

If the Designating Party timely seeks a protective order, the Party served with the this action and designated as "CONFIDENTIAL." Such information produced by Non-Parties in 5 connection with this litigation is protected by the remedies and relief provided by this Order.

Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 7 additional protections. 8

Non-Party's confidential information in its possession, and the Party is subject to an agreement 10 with the Non-Party not to produce the Non-Party's confidential information, then the Party shall: 11

12 all of the information requested is subject to a confidentiality agreement with a Non-Party; 13

(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in

14 this litigation, the relevant discovery request(s), and a reasonably specific description of the 15 information requested; and 16

(c) If the Non-Party fails to object or seek a protective order from this court within 14

18 days of receiving the notice and accompanying information, the Receiving Party may produce 19 the Non-Party's confidential information responsive to the discovery request. If the Non-Party 20 timely seeks a protective order, the Receiving Party shall not produce any information in its 21 possession or control that is subject to the confidentiality agreement with the Non-Party before a 22 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 23 burden and expense of seeking protection in this court of its Protected Material. 24

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Stipulated Protective 27

9. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION

(a) The terms of this Order are applicable to information produced by a Non-Party in

(b) In the event that a Party is required, by a valid discovery request, to produce a

(1) promptly notify in writing the Requesting Party and the Non-Party that some or

(3) make the information requested available for inspection by the Non-Party.

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 28 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 2 made of all the terms of this Order, and (d) request such person or persons to execute the 3 "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A. 4 5

produced material is subject to a claim of privilege or other protection, the obligations of the 9

11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain inadvertently

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 10 provision is not intended to modify whatever procedure may be established in an e-discovery 11 order that provides for production without prior privilege review. Pursuant to Federal Rule of 12

Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 13 communication or information covered by the attorney-client privilege or work product 14 protection, the parties may incorporate their agreement in the stipulated protective order 15 submitted to the court. 16

12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 19

12. MISCELLANEOUS 17

12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any 21 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 22 no Party waives any right to object on any ground to use in evidence of any of the material 23 covered by this Protective Order. 24 or a court order secured after appropriate notice to all interested persons, a Party may not file in 26 the public record in this action any Protected Material. A Party that seeks to file under seal any Material may only be filed under seal pursuant to a court order authorizing the sealing of the

12.3 Filing Protected Material. Without written permission from the Designating Party

Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a 2 sealing order will issue only upon a request establishing that the Protected Material at issue is 3 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a 5(d) and General Order 62 is denied by the court, then the Receiving Party may file the 6 information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed 7 by the court.

Within 60 days after the final disposition of this action, as defined in paragraph 4, each

Receiving Party must return all Protected Material to the Producing Party or destroy such 11 material. As used in this subdivision, "all Protected Material" includes all copies, abstracts, 12 compilations, summaries, and any other format reproducing or capturing any of the Protected 13

Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 14 submit a written certification to the Producing Party (and, if not the same person or entity, to the 15

Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 16 the Protected Material that was returned or destroyed and (2)affirms that the Receiving Party has 17 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 18 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 19 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 20 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 21 product, and consultant and expert work product, even if such materials contain Protected 22

Material. Any such archival copies that contain or constitute Protected Material remain subject to 23 this Protective Order as set forth in Section 4 (DURATION). 24

The Parties stipulate that this Modified Stipulated Protective Order shall be binding and

26 effective as of the date of both Parties' signature to the Stipulated Protective Order. 27

Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5

13. FINAL DISPOSITION 9

14. EFFECTIVE DATE [MODIFIED]

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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

Northern District of California for the purpose of enforcing the terms of this Stipulated 15

I hereby appoint __________________________ [print or type full name] of

_______________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 21

City and State where sworn and signed:

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, _____________________________ [print or type full name], of

I further agree to submit to the jurisdiction of the United States District Court for the

Protective Order, even if such enforcement proceedings occur after termination of this action.

Date: _________________________________

Printed name: ______________________________

[printed name]

Signature: __________________________________

[signature]

Attestation Pursuant to General Order No. 45, Section X

I hereby attest that I have on file all holograph signatures for any signatures indicated by 3 a "conformed" signature (/s/) within this efiled document.

Dated: January 6, 2012 ___/s/ Giovanna A. Ferrari

Giovanna A. Ferrari

20121114

© 1992-2012 VersusLaw Inc.



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