Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Charles Brewer, Individually v. General Nutrition Corporation


February 19, 2013


The opinion of the court was delivered by: The Honorable Laurel Beeler United States Magistrate Judge


3 confidential, proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 5 the parties hereby stipulate to and petition the court to enter the following stipulated protective order. 6


Disclosure and discovery activity in this action are likely to involve production of

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

15 information or items under this Order. 16

17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil 18

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 21

22 produces in disclosures or in responses to discovery as "CONFIDENTIAL." 23

24 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 25 transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this 26 matter. 27 28 37320883.1 2


2.1 Challenging Party: a Party or Non-Party that challenges the designation of

2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is Procedure 26(c). 19

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

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

5 does not include Outside Counsel of Record or any other outside counsel. 6

7 entity not named as a Party to this action. 8

9 but are retained to represent or advise a party to this action and have appeared in this action on behalf of that 10 party or are affiliated with a law firm which has appeared on behalf of that party. 11 12 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 13

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 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. 15

16 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or 17 retrieving data in any form or medium) and their employees and subcontractors. 18

2.12 Professional Vendors: persons or entities that provide litigation support services (e.g.,

2.13 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL." 20

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 22

Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 26 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected 27


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 Protected 25

Material. However, the protections conferred by this Stipulation and Order do not cover the

following information: (a) any information that is in the public domain at the time of disclosure to a 2

Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 3 result of publication not involving a violation of this Order, including becoming part of the public 4 record through trial or otherwise; and (b) any information known to the Receiving Party prior to the 5 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 6 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of


Even after final disposition of this litigation, the confidentiality obligations imposed 0 by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 11 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 12 and defenses in this action, with or without prejudice; and (2) final judgment herein after the 13 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 14 including the time limits for filing any motions or applications for extension of time pursuant to 15 applicable law.

Protected Material at trial shall be governed by a separate agreement or order. 8


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 to limit any 19 such designation to specific material that qualifies under the appropriate standards. The Designating Party 20 must designate for protection only those parts of material, documents, items, or oral or written 21 communications that qualify -- so that other portions of the material, documents, items, or communications for 22 which protection is not warranted are not swept unjustifiably within the ambit of this Order. 23

24 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 25 unnecessarily encumber or retard the case development process or to impose unnecessary expenses 26 and burdens on other parties) expose the Designating Party to sanctions.

Mass, indiscriminate, or routinized designations are prohibited. Designations that are designated for protection do not qualify for protection, that Designating Party must promptly notify 3 all other Parties that it is withdrawing the mistaken designation. 4

5 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery 6

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

10 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 11 affix the legend "CONFIDENTIAL" to each page that contains protected material. If only a portion 12 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 13 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 14

15 inspection need not designate them for protection until after the inspecting Party has indicated which 16 material it would like copied and produced. During the inspection and before the designation, all of 17 the material made available for inspection shall be deemed "CONFIDENTIAL." After the inspecting 18

Party has identified the documents it wants copied and produced, the Producing Party must 19 determine which documents, or portions thereof, qualify for protection under this Order. Then, 20 before producing the specified documents, the Producing Party must affix the "CONFIDENTIAL" 21 legend to each page that contains Protected Material. If only a portion or portions of the material on 22 a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 23

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

Designating Party identify on the record, before the close of the deposition, hearing, or other 26 proceeding, all protected testimony. 27 28

If it comes to a Designating Party's attention that information or items that it 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but A Party or Non-Party that makes original documents or materials available for (e.g., by making appropriate markings in the margins). 24

2 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 3 containers in which the information or item is stored the legend "CONFIDENTIAL." If only a 4 portion or portions of the information or item warrant protection, the Producing Party, to the extent 5 practicable, shall identify the protected portion(s). 6

7 designate qualified information or items does not, standing alone, waive the Designating Party's right to 8 secure protection under this Order for such material. Upon timely correction of a designation, the Receiving 9

(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 Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of 10 this Order.

13 confidentiality. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to 14 avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay 15 of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to 16 mount a challenge promptly after the original designation is disclosed. 17

18 by providing written notice of each designation it is challenging and describing the basis for each challenge. 19

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


6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to 2 participate in the meet and confer process in a timely manner. 3

4 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil Local 5

Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of 6 challenge or within 14 days of the parties agreeing that the meet and confer process will not resolve their 7 dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration affirming 8 that the movant has complied with the meet and confer requirements imposed in the preceding paragraph. 9

14 days, if applicable) shall automatically waive the confidentiality designation for each challenged 11 designation. In addition, the Challenging Party may file a motion challenging a confidentiality designation at 12 any time if there is good cause for doing so, including a challenge to the designation of a deposition transcript 13 or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a competent 14 declaration affirming that the movant has complied with the meet and confer requirements imposed by the 15 preceding paragraph. 16

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

Failure by the Designating Party to make such a motion including the required declaration within 21 days (or 10

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 18 impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to 19 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to file a 20 motion to retain confidentiality as described above, all parties shall continue to afford the material in 21 question the level of protection to which it is entitled under the Producing Party's designation until 22 the court rules on the challenge.

25 produced by another Party or by a Non-Party in connection with this case only for prosecuting, defending, or 26 attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of persons 27 28



7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or and under the conditions described in this Order. When the litigation has been terminated, a Receiving Party 2 must comply with the provisions of section 13 below (FINAL DISPOSITION). 3

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. 5 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or 7 item designated "CONFIDENTIAL" only to: 8

9 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 10 information for this litigation and who have signed the "Acknowledgment and Agreement to Be 11

(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 14

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

16 reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement 17 to Be Bound" (Exhibit A); 18 20 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 21 have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 22

23 necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), 24 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 25 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 26 bound by the court reporter and may not be disclosed to anyone except as permitted under this 27

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

(a) the Receiving Party's Outside Counsel of Record in this action, as well as Bound" that is attached hereto as Exhibit A; 12

"Acknowledgment and Agreement to Be Bound" (Exhibit A); 15

(d) the court and its personnel;

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

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

2 other person who otherwise possessed or knew the information. 3

(g) the author or recipient of a document containing the information or a custodian or


6 compels disclosure of any information or items designated in this action as "CONFIDENTIAL," that 7 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 10

11 the other litigation that some or all of the material covered by the subpoena or order is subject to this 12

(c) cooperate with respect to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected. 15

16 subpoena or court order shall not produce any information designated in this action as 17

"CONFIDENTIAL" before a determination by the court from which the subpoena or order issued, 18 unless the Party has obtained the Designating Party's permission. The Designating Party shall bear 19 the burden and expense of seeking protection in that court of its confidential material -- and nothing 20 in these provisions should be construed as authorizing or encouraging a Receiving Party in this 21 action to disobey a lawful directive from another court. 22

If a Party is served with a subpoena or a court order issued in other litigation that Party must: 8

(b) promptly notify in writing the party who caused the subpoena or order to issue in Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 13

If the Designating Party timely seeks a protective order, the Party served with the


25 this action and designated as "CONFIDENTIAL." Such information produced by Non-Parties in 26 connection with this litigation is protected by the remedies and relief provided by this Order. 27

(a) The terms of this Order are applicable to information produced by a Non-Party in Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 2 protections. 3

(b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party's confidential information in its possession, and the Party is subject to an agreement with 5 the Non-Party not to produce the Non-Party's confidential information, then the Party shall: 6

1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 8

2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 10 description of the information requested; and 11

3. make the information requested available for inspection by the Non- Party. 13

4 days of receiving the notice and accompanying information, the Receiving Party may produce the 15

Non-Party's confidential information responsive to the discovery request. If the Non-Party timely 16 seeks a protective order, the Receiving Party shall not produce any information in its possession or 17 control that is subject to the confidentiality agreement with the Non-Party before a determination by 18 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 19 seeking protection in this court of its Protected Material.

(c) If the Non-Party fails to object or seek a protective order from this court within Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party 5 of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 6

Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of 7 all the terms of this Order, and (d) request such person or persons to execute the "Acknowledgment 8 and Agreement to Be Bound" that is attached hereto as Exhibit A. 9


12 produced material is subject to a claim of privilege or other protection, the obligations of the 13

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). Specifically, if 14 information produced in discovery is subject to a claim of privilege or of protection as trial 15 preparation material, the party making the claim may notify any party that received the information 16 of the claim and the basis for it. After being notified, a party must promptly return, sequester, or 17 destroy the specified information and any copies it has; must not use or disclose the information until 18 the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it 19 before being notified; and may promptly present the information to the court under seal for a 20 determination of the claim. The producing party must preserve the information until the claim is 21 resolved. This provision is not intended to modify whatever procedure may be established in an e-22 discovery order that provides for production without prior privilege review. Pursuant to Federal Rule 23 of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 24 communication or information covered by the attorney-client privilege or work product protection, 25 the parties may incorporate their agreement in the stipulated protective order submitted to the court.


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 4


When a Producing Party gives notice to Receiving Parties that certain inadvertently 3 its modification by the court in the future. 4

5 no Party waives any right it otherwise would have to object to disclosing or producing any information or 6 item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to 7 object on any ground to use in evidence of any of the material covered by this Protective Order. 8

9 a court order secured after appropriate notice to all interested persons, a Party may not file in the public record 10 in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply 11 with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court order 12 authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing 13 order will issue only upon a request establishing that the Protected Material at issue is privileged, protectable 14 as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file 15

Party may file the information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise 17 instructed by the court. 18


Within 60 days after the final disposition of this action, as

19 defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing 20

Party or destroy such material. As used in this subdivision, "all Protected Material" includes all 21 copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the 22

Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party 23 must submit a written certification to the Producing Party (and, if not the same person or entity, to 24 the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 25 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not 26 retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing 27 any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 28



12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek

12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order

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

Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving 16 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 2 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and 3 consultant and expert work product, even if such materials contain Protected Material. Any such 4 archival copies that contain or constitute Protected Material remain subject to this Protective Order 5 as set forth in Section 4 (DURATION). 6


DATED: February 13, 2013 McGuire Woods LLP 9 10 By: s/ Susan L. Germaise Susan L. Germaise 11 Attorneys for Defendant GENERAL NUTRITION CORPORATION, a Pennsylvania corporation DATED: February 13, 2013 13 14 By: /s/ Michael Hoffman 15 Michael Hoffman Leonard Emma Attorneys for Plaintiff Charles Brewer .





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

___________________________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued 6 by the United States District Court for the Northern District of California on [date] in the case of 7

Charles Brewer, et al., v. GENERAL NUTRITION CORPORATION, a Pennsylvania corporation., 8

Case No. 11-cv-03587-JW. I agree to comply with and to be bound by all the terms of this Stipulated 9

Protective Order and I understand and acknowledge that failure to so comply could expose me to 10 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in 11 any manner any information or item that is subject to this Stipulated Protective Order to any person 12 or entity except in strict compliance with the provisions of this Order. 13

I further agree to submit to the jurisdiction of the United States District Court for the Northern 14

District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even 15 if such enforcement proceedings occur after termination of this action. 16

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

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

Date: ___________________________________ 21

City and State where sworn and signed: _________________________________ 22

[printed name]

Signature: __________________________________

[signature] 25 26 27 28


Printed name: ______________________________ 23



I, Susan L. Germaise, certify that the Stipulated Protective Order was filed electronically on

February 15, 2012 in the Court's ECF; thereby upon completion the ECF system automatically 4 generated a "Notice of Electronic Filing" ("NEF") as service through CM/ECF to registered e-mail 5 addresses of parties of record in the case, in particular on the following: 6 7

Attorneys for Plaintiff Charles Brewer: Leonard Thomas Emma; Email: 8

Michael Hoffman; Email:

/s/ Susan L. Germaise____________

Susan L. Germaise


© 1992-2013 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.