Jeff Jonah v. Kimberly-Clark Corporation et al

Northern District of California, cand-4:2015-cv-03243

Order on Stipulation

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Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 1 of 19 1 GUTRIDE SAFIER LLP SIDLEY AUSTIN LLP ADAM J. GUTRIDE (State Bar No. 181446) Amy P. Lally, SBN 198555 2 SETH A. SAFIER (State Bar No. 197427) alally@sidley.com MARIE MCCRARY (State Bar No. 262670) Darlene M. Cho, SBN 251167 3 KRISTEN G. SIMPLICIO (State Bar No. dcho@sidley.com 263291) SIDLEY AUSTIN LLP 4 100 Pine St. Suite 1250 1999 Avenue of the Stars, 17th Fl. Telephone: (415) 639-9090 Los Angeles, California 90067 5 Facsimile: (415) 449-6469 Telephone: (310) 595-9500 TYCKO & ZAVAREEI LLP Facsimile: (310) 595-9501 6 HASSAN ZAVAREEI ANDREW JONATHAN SILVER Attorneys for Defendants 7 1828 L Street, N.W., Suite 1000 KIMBERLY-CLARK CORPORATION; Washington, DC 20036 KIMBERLY-CLARK GLOBAL SALES, 8 Telephone: (202) 417-3658 LLC; and KIMBERLY-CLARK WORLDWIDE, INC. 9 SPANGENBERG SHIBLEY & LIBER LLP STUART E. SCOTT 10 1001 Lakeside Avenue East, Suite 1700 Cleveland, OH 44114 11 Telephone: (216) 696-3232 Facsimile: (216) 696-3924 12 13 Attorneys for Plaintiff JEFF JONAH 14 15 UNITED STATES DISTRICT COURT 16 FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 17 18 JEFF JONAH, an individual, on behalf of) Case No. 15-cv-03243-PJH 19 himself, the general public and those) similarly situated,) Assigned to: Hon. Phyllis J. Hamilton 20) Plaintiff,) STIPULATED PROTECTIVE ORDER 21) AS MODIFIED BY THE COURT v.) 22) KIMBERLY-CLARK CORPORATION;) 23 KIMBERLY-CLARK WORLDWIDE,) Complaint Filed: June 9, 2015 INC.; KIMBERLY-CLARK GLOBAL) Trial Date: None Set 24 SALES LLC; and DOES 1 through 50,)) 25 Defendants.)) 26 27 28 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 2 of 19 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of 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 6 Order. The Parties acknowledge that this Order does not confer blanket protections on all disclosures 7 or responses to discovery and that the protection it affords from public disclosure and use extends 8 only to the limited information or items that are entitled to confidential treatment under the 9 applicable legal principles. The Parties further acknowledge, as set forth in Section 12.3, below, that 10 this Stipulated Protective Order does not entitle them to file confidential information under seal; 11 Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be 12 applied when a party seeks permission from the court to file material under seal. 13 2. DEFINITIONS 14 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 15 information or items under this Order. 16 2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is 17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 18 Civil Procedure 26(c). 19 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 20 as their support staff). 21 2.4 Designating Party: a Party or Non-Party that designates information or items that it 22 produces in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY 23 CONFIDENTIAL – ATTORNEYS' EYES ONLY." 24 2.5 Discovery Material: all items or information, regardless of the medium or manner in 25 which it is generated, stored, or maintained (including, among other things, testimony, transcripts, 26 and tangible things), that are produced or generated in disclosures or responses to discovery in this 27 matter, including but not limited to documents, tangible things, depositions, deposition exhibits, 28 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 3 of 19 1 interrogatory responses, responses to requests for production of documents, responses to subpoenas, 2 and admissions. 3 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 4 litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a 5 consultant in this action, (2) is not a past or current employee of a Party or of a Party's competitor, 6 and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party's 7 competitor. 8 2.7 "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" Information or Items: 9 extremely sensitive "Confidential Information or Items," disclosure of which to another Party or 10 Non-Party would create a substantial risk of serious harm that could not be avoided by less 11 restrictive means. 12 2.8 House Counsel: attorneys who are employees of a party to this action. House Counsel 13 does not include Outside Counsel of Record or any other outside counsel. 14 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal 15 entity not named as a Party to this action. 16 2.10 Outside Counsel of Record: attorneys who are not employees of a Party but are 17 retained to represent or advise a Party and have appeared in this action on behalf of that Party or are 18 affiliated with a law firm which has appeared on behalf of that Party. 19 2.11 Party: any party to this action, including all of its officers, directors, employees, 20 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 21 2.12 Privileged Material: material protected by the attorney-client privilege, work product 22 doctrine, or other applicable privilege. 23 2.13 Producing Party: a Party or Non-Party that produces Discovery Material in this 24 action. 25 2.14 Professional Vendors: persons or entities that provide litigation support services (e.g., 26 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 27 storing, or retrieving data in any form or medium) and their employees and subcontractors. 28 2.15 Protected Material: any Discovery Material that is designated as "CONFIDENTIAL," 2 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 4 of 19 1 or as "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY." 2 2.16 Receiving Party: a Party that receives Discovery Material from a Producing Party. 3 3. SCOPE 4 The protections conferred by this Stipulated Protective Order cover not only Protected 5 Material (as defined above), but also (1) any information copied or extracted from Protected 6 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 7 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected 8 Material. However, the protections conferred by this Stipulation and Order do not cover the 9 following information: (a) any information that is in the public domain at the time of disclosure to a 10 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 11 result of publication not involving a violation of this Order, including becoming part of the public 12 record through trial or otherwise; and (b) any information known to the Receiving Party prior to the 13 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 14 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 15 Protected Material at trial shall be governed by a separate agreement or order. 16 4. DURATION 17 Even after final disposition of this litigation, the confidentiality obligations imposed by this 18 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 19 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 20 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 21 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 22 time limits for filing any motions or applications for extension of time pursuant to applicable law. 23 5. DESIGNATING PROTECTED MATERIAL. Any Designating Party shall have the right to 24 designate as "Confidential" any information, document, or thing that it is disclosing and that it 25 believes in good faith constitutes, contains, embodies, discloses, or reflects trade secrets or other 26 non-public and confidential technical, commercial, financial, personal, or business information, or 27 other valuable information covered by a legitimate privacy right or interest, including but not limited 28 to business plans; marketing plans and strategies; financial statements; product, customer, or market 3 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 5 of 19 1 research; customer lists; business relationships; product testing, design, engineering, or 2 specifications; sales volumes, pricing, profits, costs, or margins; personal financial or other 3 personally sensitive information; and any other material that is confidential pursuant to applicable 4 law. Any Designating Party shall also have the right to designate as "HIGHLY CONFIDENTIAL – 5 ATTORNEYS' EYES ONLY" any Confidential Information for which the Designating Party in 6 good faith reasonably believes that disclosure other than that as permitted pursuant to Section 7 of 7 this Order may cause competitive injury to the Designating Party. 8 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 9 Non-Party that designates information or items for protection under this Order must take care to 10 limit any such designation to specific material that qualifies under the appropriate standards. To the 11 extent it is practical to do so, the Designating Party must designate for protection only those parts of 12 material, documents, items, or oral or written communications that qualify – so that other portions of 13 the material, documents, items, or communications for which protection is not warranted are not 14 swept unjustifiably within the ambit of this Order. 15 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 16 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 17 encumber or retard the case development process or to impose unnecessary expenses and burdens on 18 other Parties) expose the Designating Party to sanctions. 19 If it comes to a Designating Party's attention that information or items that it designated for 20 protection do not qualify for protection at all or do not qualify for the level of protection initially 21 asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the 22 mistaken designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order, or 24 as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 25 under this Order must be clearly so designated before the material is disclosed or produced. 26 Designation in conformity with this Order requires: 27 (a) for information in documentary form (e.g., paper or electronic documents, but 28 excluding transcripts of depositions or other pretrial or trial proceedings), that the Designating Party 4 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 6 of 19 1 affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES 2 ONLY" to each page that contains protected material. To the extent practical, if only a portion or 3 portions of the material on a page qualifies for protection, the Designating Party also must clearly 4 identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must 5 specify, for each portion, the level of protection being asserted. 6 A Party or Non-Party that makes original documents or materials available for inspection 7 need not designate them for protection until after the inspecting Party has indicated which material it 8 would like copied and produced. During the inspection and before the designation, all of the material 9 made available for inspection shall be deemed "HIGHLY CONFIDENTIAL – ATTORNEYS' 10 EYES ONLY." After the inspecting Party has identified the documents it wants copied and 11 produced, the Designating Party must determine which documents, or portions thereof, qualify for 12 protection under this Order. At the option of the Designating Party, materials may be produced for 13 inspection before they are reviewed for privilege, work product, or other applicable privilege, 14 pursuant to a "quick peek" agreement among the parties as contemplated by Fed. R. Civ. P. 26(f) 15 and Fed. R. Evid. 502(d). There will be no waiver of privilege, work product, or other applicable 16 privileges or objections in this or any other proceeding by virtue of an inspection of Discovery 17 Materials that proceeds before they are reviewed for the existence of such privileges. There will also 18 be no waiver of confidentiality by the inspection of Discovery Materials before they are copied and 19 marked "Confidential" or "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" pursuant 20 to this procedure. Then, before producing the specified documents, the Producing Party must affix 21 the appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – ATTORNEYS' 22 EYES ONLY") to each page that contains Protected Material. If only a portion or portions of the 23 material on a page qualifies for protection, the Designating Party also must clearly identify the 24 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for 25 each portion, the level of protection being asserted. Any Discovery Materials designated for copying 26 that are protected by privilege, work product, or other applicable privileges or objections may be 27 removed before copying, but shall be maintained by the Producing Party and described in a privilege 28 log conforming to the applicable federal rules. 5 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 7 of 19 1 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 2 Designating Party identify on the record, before the close of the deposition, hearing, or other 3 proceeding, all protected testimony and specify the level of protection being asserted. When it is 4 impractical to identify separately each portion of testimony that is entitled to protection and it 5 appears that substantial portions of the testimony may qualify for protection, the Designating Party 6 may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right 7 to have up to 21 days after receipt of the final transcript to identify the specific portions of the 8 testimony as to which protection is sought and to specify the level of protection being asserted. Only 9 those portions of the testimony that are appropriately designated for protection within the 21 days 10 shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating 11 Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, 12 that the entire transcript shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – 13 ATTORNEYS' EYES ONLY." 14 Parties shall give the other Parties notice if they reasonably expect a deposition, hearing or 15 other proceeding to include Protected Material so that the other Parties can ensure that only 16 authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" 17 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 18 shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – 19 ATTORNEYS' EYES ONLY." 20 Transcripts containing Protected Material shall have an obvious legend on the title page that 21 the transcript contains Protected Material, and the title page shall be followed by a list of all pages 22 (including line numbers as appropriate) that have been designated as Protected Material and the level 23 of protection being asserted by the Designating Party. The Designating Party shall inform the court 24 reporter of these requirements. If the 21 day period described above is invoked, the deposition 25 transcript as to which the 21 day period applies shall be treated as "HIGHLY CONFIDENTIAL – 26 ATTORNEYS' EYES ONLY" until the 21 day period runs. After the expiration of that period, the 27 transcript shall be treated only as actually designated. 28 (c) for information produced in some form other than documentary and for any other 6 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 8 of 19 1 tangible items, that the Designating Party affix in a prominent place on the exterior of the container 2 or containers in which the information or item is stored the legend "CONFIDENTIAL" or 3 "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY." If only a portion or portions of the 4 information or item warrant protection, the Designating Party, to the extent practicable, shall identify 5 the protected portion(s) and specify the level of protection being asserted. 6 5.3 Inadvertent Failures to Designate. If timely corrected upon discovery, an inadvertent 7 failure to designate qualified information or items does not, standing alone, waive the Designating 8 Party's 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 Protected Material, 10 and any copies, extracts, or summaries thereof prepared, is treated in accordance with the provisions 11 of this Order. 12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 13 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 14 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 15 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 16 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 17 confidentiality designation by electing not to mount a challenge promptly after the original 18 designation is disclosed. 19 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 20 by providing written notice of each designation it is challenging and describing the basis for each 21 challenge. If the basis of the Challenging Party's challenge is the same for a group of substantially 22 similar documents, the Challenging Party may provide written notice of the group of documents 23 (identified by bates number) challenged and the basis for the challenge to the designation of the 24 group of documents. To avoid ambiguity as to whether a challenge has been made, the written notice 25 must recite that the challenge to confidentiality is being made in accordance with this specific 26 paragraph of the Protective Order. The Parties shall attempt to resolve each challenge in good faith 27 and must begin the process by conferring directly (in voice to voice dialogue; other forms of 28 communication are not sufficient) within 14 days of the date of service of notice. In conferring, the 7 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 9 of 19 1 Challenging Party must explain the basis for its belief that the confidentiality designation was not 2 proper and must give the Designating Party an opportunity to review the designated material, to 3 reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the 4 chosen designation. A Challenging Party may proceed to the next stage of the challenge process only 5 if it has engaged in this meet and confer process first or establishes that the Designating Party is 6 unwilling to participate in the meet and confer process in a timely manner. 7 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 8 intervention, the Parties shall file a joint letter brief with the Court, or, if the Court refers this action 9 to a Magistrate Judge for the resolution of all discovery disputes, with the Magistrate Judge, within 10 21 days of the initial conference of counsel or within 14 days of the Parties agreeing that the meet 11 and confer process will not resolve their dispute, whichever is earlier. Each such motion must be 12 accompanied by a competent declaration affirming that the movant has complied with the meet and 13 confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make 14 such a motion including the required declaration within 21 days (or 14 days, if applicable) shall 15 automatically waive the confidentiality designation for each challenged designation. 16 The burden of persuasion in any such challenge proceeding shall be on the Designating 17 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 18 unnecessary expenses and burdens on other Parties) may expose the Challenging Party to sanctions. 19 The Parties shall continue to afford the material in question the level of protection to which it is 20 entitled under the Producing Party's designation until the court rules on the challenge. 21 7. ACCESS TO AND USE OF PROTECTED MATERIAL 22 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 23 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 24 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 25 the categories of persons and under the conditions described in this Order. When the litigation has 26 been terminated, a Receiving Party must comply with the provisions of Section 14 below (FINAL 27 DISPOSITION). 28 Protected Material must be stored and maintained by a Receiving Party at a location and in a 8 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 10 of 19 1 secure manner that ensures that access is limited to the persons authorized under this Order. 2 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered by 3 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 4 information or item designated "CONFIDENTIAL" only to: 5 (a) the Receiving Party's Outside Counsel of Record in this action, as well as 6 partners, associate attorneys and staff of said Outside Counsel of Record who are actually assisting 7 in the conduct of this litigation; 8 (b) the officers, directors, and employees (including House Counsel) of the Receiving 9 Party with whom Defendants' Outside Counsel of Record may deem it necessary to consult for this 10 litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 11 (c) the named Plaintiff who has signed the "Acknowledgment and Agreement to Be 12 Bound" (Exhibit A); 13 (d) experts (as defined in this Order) of the Receiving Party employed by the Parties 14 or counsel to assist in the preparation and trial of the Action and who have signed the 15 "Acknowledgment and Agreement to Be Bound" (Exhibit A); 16 (e) the court, including court personnel necessary to assist the Court in its function 17 with regard to the Action; 18 (f) court reporters and their staff, professional jury or trial consultants, and 19 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 20 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 21 (g) during their depositions, the author or recipient of a document containing the 22 information or a custodian or other person who otherwise possessed or knew the information; and 23 (h) during their depositions, witnesses in the action to whom disclosure is reasonably 24 necessary, who are not otherwise authors, recipients or custodians described in Section 7.2(g), and 25 who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), if agreed by the 26 Designating Party or ordered by the court. 27 7.3 Disclosure of "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" 28 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 9 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 11 of 19 1 Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY 2 CONFIDENTIAL – ATTORNEYS' EYES ONLY" only to: 3 (a) the Receiving Party's Outside Counsel of Record in this action, as well as 4 partners, associate attorneys and staff of said Outside Counsel of Record who are actually assisting 5 in the conduct of this litigation; 6 (b) the named Plaintiffs who have signed the Undertaking for Highly Confidential 7 Information (Exhibit B); 8 (c) in house counsel of the Receiving Party who are not involved in competitive 9 decision-making or research and development activities related to any products at issue in this 10 Action, and who execute the Undertaking for Highly Confidential Information attached as Exhibit B 11 and provide a copy of the executed Undertaking for Highly Confidential Information to all Parties' 12 counsel, and the paralegals, assistants, and stenographic and clerical employees working under the 13 direct supervision of such House Counsel. No Discovery Materials designated as "HIGHLY 14 CONFIDENTIAL – ATTORNEYS' EYES ONLY" shall be disclosed to any such individual until at 15 least 7 days have elapsed following written notice (via email) to the Designating Party of the identity 16 of the individual to whom disclosure will be made. A fully executed copy of Exhibit B completed 17 by the individual shall be included with said written notice. If the Designating Party makes a written 18 objection within the 7-day period, the Parties agree to meet and confer as to whether and what 19 materials may be shown to the individual. If the Parties cannot reach agreement, any Party may 20 bring the issue to the Court for resolution; 21 (d) Experts (as defined in this Order) of the Receiving Party employed by the parties or 22 counsel to assist in the preparation and trial of the lawsuit; provided, however, that before disclosure to any 23 such experts is made, the identity of the expert must be disclosed in writing to the Producing Party. The 24 disclosure shall be treated as a request to meet and confer and the parties shall schedule an in person meet and 25 confer within 10 business days of the request. The Producing Party shall have seven (7) days to object to the 26 expert being shown "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" materials. The 27 Producing Party must provide the basis for its objection at the time the objection is made. If the Producing 28 Party objects, the Parties agree to proceed with the scheduled meet and confer as to whether and what 10 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 12 of 19 1 materials may be shown to the expert. If the Parties cannot reach agreement, the Producing Party must bring 2 the issue to the Court for resolution within five (5) business days of the parties' meet and confer. If the issue is 3 brought to the Court for resolution, no disclosure to the expert may be made unless and until the Court so 4 orders. If the Producing Party does not meet and confer or bring the issue to the Court for resolution within 5 the times specified herein, its objection shall be deemed waived and the Receiving Party is permitted to show 6 the information to its expert. The expert must also be informed of and agree in writing to be subject to the 7 provisions of this Order requiring that the Discovery Materials be held in confidence, and must execute the 8 "Acknowledgment and Agreement to Be Bound" (Exhibit A) and the undertaking for Highly Confidential 9 Information (Exhibit B); 10 (e) the court, including personnel necessary to assist the court in its function with 11 regard to the Action; 12 (f) Professional Vendors who have signed the "Acknowledgment and Agreement to 13 Be Bound" (Exhibit A); and 14 (g) during their depositions, the author or recipient of a document containing the 15 information or a custodian or other person who otherwise possessed or knew the information. 16 7.4 Except as provided in Section 7, counsel for the parties shall keep all Discovery 17 Materials designated as "Confidential" or "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES 18 ONLY" that are received under this Order secure within their exclusive possession and shall take 19 reasonable efforts to place such Discovery Materials in a secure area and appropriately identified so 20 as to allow access to such information only to such persons and under such terms as is permitted 21 under this Order. 22 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 23 If a Party is served with a subpoena or a court order issued in other litigation that 24 compels disclosure of any information or items designated in this action as "CONFIDENTIAL" or 25 "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" that Party must: 26 (a) promptly notify in writing the Designating Party. Such notification shall include a 27 copy of the subpoena or court order; 28 11 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 13 of 19 1 (b) promptly notify in writing the party who caused the subpoena or order to issue in 2 the other litigation that some or all of the material covered by the subpoena or order is subject to this 3 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 4 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 5 Designating Party whose Protected Material may be affected. 6 If the Designating Party timely seeks a protective order, the Party served with the 7 subpoena or court order shall not produce any information designated in this action as 8 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" before a 9 determination by the court from which the subpoena or order issued, unless the Party has obtained 10 the Designating Party's permission. The Designating Party shall bear the burden and expense of 11 seeking protection in that court of its confidential material – and nothing in these provisions should 12 be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful 13 directive from another court. 14 9. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 15 (a) The terms of this Order are applicable to information produced by a Non- 16 Party in this action and designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – 17 ATTORNEYS' EYES ONLY." Such information produced by Non-Parties in connection with this 18 litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions 19 should be construed as prohibiting a Non-Party from seeking additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, to produce a 21 Non-Party's confidential information in its possession, and the Party is subject to an agreement with 22 the Non-Party not to produce the Non-Party's confidential information, then the Party shall: 23 1. promptly notify in writing the Requesting Party and the Non-Party that some 24 or all of the information requested is subject to a confidentiality agreement with a Non-Party; 25 2. promptly provide the Non-Party with a copy of the Stipulated Protective 26 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the 27 information requested; and 28 12 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 14 of 19 1 3. make the information requested available for inspection by the Non-Party. 2 If the Non-Party fails to object or seek a protective order from this court within 14 days of 3 receiving the notice and accompanying information, the Receiving Party may produce the Non- 4 Party's confidential information responsive to the discovery request. If the Non-Party timely seeks a 5 protective order, the Receiving Party shall not produce any information in its possession or control 6 that is subject to the confidentiality agreement with the Non-Party before a determination by the 7 court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 8 seeking protection in this court of its Protected Material. 9 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 10 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 11 Protected Material to any person or in any circumstance not authorized under this Stipulated 12 Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party 13 of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 14 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of 15 all the terms of this Order, and (d) request such person or persons return all unauthorized copies, 16 excerpts or summaries of Protected Material and execute the "Acknowledgment and Agreement to 17 Be Bound" that is attached hereto as Exhibit A. 18 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 19 Pursuant to Federal Rule of Evidence 502(d) and Federal Rule of Civil Procedure 20 26(b)(5)(B), if a Producing Party informs another Party that a document or information received by 21 the other Party is Privileged Material and was produced inadvertently, the recipient of such 22 Privileged Material shall, upon discovery or notification of such a disclosure: (a) promptly return 23 the Privileged Material and all copies or summaries thereof in its possession; (b) delete any 24 electronic versions of the Privileged Material and all copies or summaries from any data source, or 25 any database it maintains; (c) retrieve all electronic and paper copies and all summaries of the 26 Privileged Material provided to any third parties, including experts; (d) destroy any notes that reveal 27 the substance of the Privileged Material; and (e) make no use of the information contained in the 28 13 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 15 of 19 1 Privileged Material or copies or summaries thereof. The production of Privileged Material shall not 2 constitute a waiver of any privilege or protection. Instead, the Producing Party shall be entitled to 3 assert such privilege or protection in this or any other Federal, State, or other proceeding, and the 4 Privileged Material and its subject matter shall be treated as if there had been no such disclosure. 5 Within a reasonable time after the discovery of the inadvertent disclosure, the Producing 6 Party will provide a log that describes the basis for the claim that the Privileged Material is 7 privileged or otherwise protected from disclosure. The Receiving Party shall have the right to apply 8 to this Court for an order that the Privileged Material is not protected from disclosure by any 9 privilege, law, or doctrine. The Receiving Party may not, however, assert as a ground for such 10 motion the fact or circumstances of the inadvertent production or reveal the protected contents of the 11 Privileged Material prior to entry of an Order from this Court that such revelation is permitted. 12 The Party to whom any Privileged Material was returned shall retain the Privileged Material 13 until the end of the case, including any appeals. If the substance of the Privileged Material is 14 discussed in a deposition or pleading before discovery or notification of the inadvertent disclosure, 15 such testimony or discussion shall be stricken and may not be used for any purpose. 16 12. MISCELLANEOUS 17 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 18 its modification by the court in the future. 19 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 20 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, no 22 Party waives any right to object on any ground to use in evidence of any of the material covered by 23 this Protective Order. 24 12.3 Filing Protected Material. Without written permission from the Designating Party or a 25 court order secured after appropriate notice to all interested persons a Party may not file in the 26 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 27 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal 28 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant 14 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 16 of 19 1 to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the 2 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 3 protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant 4 to Civil Local Rule 79-5(e) is denied by the court, then the Receiving Party may file the Protected 5 Material in the public record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise instructed by 6 the court. 7 13. NO EFFECT ON OTHER OBLIGATIONS OR PROTECTIONS. 8 This Order shall not enlarge or affect the proper scope of discovery in this or any 9 other litigation, nor shall this Order imply that Confidential Information is properly discoverable, 10 relevant, or admissible in this or any other litigation. Each Party reserves the right to object to any 11 disclosure of information or production of any documents that the Producing Party designates as 12 Confidential Information on any other ground it may deem appropriate. Neither the entry of this 13 Order, nor the designation of any Discovery Material as Confidential Information, nor the failure to 14 make such designation, shall constitute evidence with respect to any issue in this or any other 15 litigation. The entry of this Order shall be without prejudice to the rights of the parties, or any one of 16 them, or of any non-party to assert or apply for additional or different protection. 17 14. FINAL DISPOSITION 18 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 19 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 20 As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, 21 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 22 the Protected Material is returned or destroyed, the Receiving Party must submit a written 23 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 24 by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected Material 25 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 26 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 27 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 28 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 15 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 17 of 19 1 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 2 and expert work product, even if such materials contain Protected Material. Any such archival copies 3 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 4 Section 4 (DURATION). 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 DATED: August 24, 2018 /s/ Marie A. McCrary / 8 Marie A. McCrary, Esq. Attorneys for Plaintiff 9 10 DATED: August 24, 2018 /s/ Amy P. Lally (by permission) / 11 Amy P. Lally, Esq. 12 Attorney for Defendants 13 ATTESTATION TO FILING 14 Pursuant to L.R. 5-1(i)(3), I attest that counsel for Defendant, Amy P. Lally, concurred in this 15 Stipulated Protective Order and authorized the filing of the same. 16 17 By: /s/ Marie A. McCrary / 18 Marie A. McCrary Attorneys for Plaintiff 19 20 S DISTRICT PURSUANT TO STIPULATION, IT IS SO ORDERED. TE C TA 21 O S U ED RT ERED UNIT O ORD 22 IT IS S DATED: ________________________ September 4, 2018 _____________________________________ R NIA amilton yllis J. H NO 23 Judge P Hon. Phyllis J. Hamilton h FO RT LI E H A C 24 United States District RN D I S Judge TO F T RIC 25 26 27 28 16 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 18 of 19 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 2 JEFF JONAH, an individual, on behalf of Case No. 15-cv-03243-PJH 3 himself, the general public and those similarly situated, STIPULATED PROTECTIVE ORDER 4 Plaintiff, EXHIBIT A 5 v. 6 KIMBERLY CLARK CORPORATION, et al., Defendants. 7 8 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 9 I, ___________________________ [print or type full name], of _________________ [print 10 or type full address], declare under penalty of perjury that I have read in its entirety and understand 11 the Stipulated Protective Order that was issued by the United States District Court for the Northern 12 District of California on ________________ [date] in the case of Jonah v. Kimberly Clark 13 Corporation, et al., Case No. 15-cv-03243-PJH. I agree to comply with and to be bound by all the 14 terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply 15 could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I 16 will not disclose in any manner any information or item that is subject to this Stipulated Protective 17 Order to any person or entity except in strict compliance with the provisions of this Order. 18 I further agree to submit to the jurisdiction of the United States District Court for the 19 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 20 Order, even if such enforcement proceedings occur after termination of this action. 21 I hereby appoint __________________________ [print or type full name] of 22 _______________________________________ [print or type full address and telephone number] as 23 my California agent for service of process in connection with this action or any proceedings related 24 to enforcement of this Stipulated Protective Order. Date: _________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: ______________________________ 27 Signature: __________________________________ 28 Case 4:15-cv-03243-PJH Document 52 51 Filed 09/04/18 08/24/18 Page 19 of 19 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA JEFF JONAH, an individual, on behalf of 3 himself, the general public and those similarly Case No. 15-cv-03243-PJH situated, STIPULATED PROTECTIVE ORDER 4 Plaintiff, 5 v. EXHIBIT B 6 KIMBERLY CLARK CORPORATION, et al., 7 Defendants. 8 9 UNDERTAKING FOR HIGHLY CONFIDENTIAL INFORMATION 10 I, _______________________________, declare as follows: 11 1. My business address is _______________________________________. 12 2. My present employer and the address of my present employer (if different from above) is 13 ________________________________________________________________. 14 3. My present occupation or job description is ____________________________. My job title 15 is ______________________________. 16 4. I am not involved in competitive decision-making or research and development related to any 17 products at issue in this dispute. 18 5. I have received a copy of the Stipulated Protective Order Regarding Confidentiality of 19 Discovery Materials ("Protective Order") in the above-captioned action. 20 6. I have carefully read and understand the provisions of the Protective Order. 21 7. I agree to be bound by the terms of the Protective Order. 22 Date: _________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: ______________________________ 25 Signature: __________________________________ 26 27 28