Nadine Jarrard v. G/O Media, Inc. ( 2020 )

Claire E. Cochran (SBN 222529) 1 Kimberly A. Cole (SBN 217780) 2 LAW OFFICES OF CLAIRE COCHRAN, PC 100 Pine Street, Suite 1250 3 San Francisco, CA 94111 4 Telephone: (415) 580-6019 Email: claire@clairecochranlegal.com 5 6 Attorneys for Plaintiff NADINE JARRARD 7 8 Michele Ballard Miller (SBN 104198) mbmiller@cozen.com 9 Nicole Herter Perkin (SBN 255152) 10 nperkin@cozen.com COZEN O'CONNOR 11 1299 Ocean Avenue, Suite 900 12 Santa Monica, CA 90401 Telephone: (310) 393-4000 13 Facsimile: (310) 394-4700 14 Attorneys for Defendant 15 G/O MEDIA, INC. 16 17 18 UNITED STATES DISTRICT COURT 19 CENTRAL DISTRICT OF CALIFORNIA 20 21 NADINE JARRARD, Case No. 2:19-cv-09557-JAK-RAO 22 Plaintiff, STIPULATED PROTECTIVE 23 v. ORDER1 24 G/O MEDIA, INC., et al., 25 Defendant. 26 27 1 1. A. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production 3 of confidential, proprietary, or private information for which special protection from 4 public disclosure and from use for any purpose other than prosecuting this litigation 5 may be warranted. Accordingly, the parties hereby stipulate to and petition the Court 6 to enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to discovery 8 and that the protection it affords from public disclosure and use extends only to the 9 limited information or items that are entitled to confidential treatment under the 10 applicable legal principles. 11 B. GOOD CAUSE STATEMENT 12 This action is likely to involve trade secrets, customer and pricing lists and 13 other valuable research, development, commercial, financial, technical and/or 14 proprietary information for which special protection from public disclosure and 15 from use for any purpose other than prosecution of this action is warranted. Such 16 confidential and proprietary materials and information consist of, among other 17 things, confidential business or financial information, information regarding 18 confidential business practices, or other confidential research, development, or 19 commercial information (including information implicating privacy rights of third 20 parties), information otherwise generally unavailable to the public, or which may be 21 privileged or otherwise protected from disclosure under state or federal statutes, 22 court rules, case decisions, or common law. Accordingly, to expedite the flow of 23 information, to facilitate the prompt resolution of disputes over confidentiality of 24 discovery materials, to adequately protect information the parties are entitled to keep 25 confidential, to ensure that the parties are permitted reasonable necessary uses of 26 such material in preparation for and in the conduct of trial, to address their handling 27 at the end of the litigation, and serve the ends of justice, a protective order for such will not be designated as confidential for tactical reasons and that nothing be so 1 designated without a good faith belief that it has been maintained in a confidential, 2 non-public manner, and there is good cause why it should not be part of the public 3 record of this case. 4 C. ACKNOWLEDGEMENT OF PROCEDURE FOR FILING UNDER SEAL 5 The parties further acknowledge, as set forth in Section 12.3, below, that this 6 Stipulated Protective Order does not entitle them to file confidential information 7 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 8 and the standards that will be applied when a party seeks permission from the court 9 to file material under seal. 10 There is a strong presumption that the public has a right of access to judicial 11 proceedings and records in civil cases. In connection with non-dispositive motions, 12 good cause must be shown to support a filing under seal. See Kamakana v. City and 13 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 14 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 15 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 16 require good cause showing), and a specific showing of good cause or compelling 17 reasons with proper evidentiary support and legal justification, must be made with 18 respect to Protected Material that a party seeks to file under seal. The parties’ mere 19 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 20 without the submission of competent evidence by declaration, establishing that the 21 material sought to be filed under seal qualifies as confidential, privileged, or 22 otherwise protectable—constitute good cause. 23 Further, if a party requests sealing related to a dispositive motion or trial, then 24 compelling reasons, not only good cause, for the sealing must be shown, and 25 the relief sought shall be narrowly tailored to serve the specific interest to be 26 protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). 27 1 introduced under seal in connection with a dispositive motion or trial, the party 2 seeking protection must articulate compelling reasons, supported by specific facts and 3 legal justification, for the requested sealing order. Again, competent evidence 4 supporting the application to file documents under seal must be provided by 5 declaration. 6 Any document that is not confidential, privileged, or otherwise protectable in its 7 entirety will not be filed under seal if the confidential portions can be redacted. If 8 documents can be redacted, then a redacted version for public viewing, omitting only 9 the confidential, privileged, or otherwise protectable portions of the document, shall 10 be filed. Any application that seeks to file documents under seal in their entirety 11 should include an explanation of why redaction is not feasible. 12 2. DEFINITIONS 13 2.1 Action: The action entitled Nadine Jarrard, Plaintiff v. G/O Media, Inc., 14 Defendant, Case No. 2:19-cv-09557-JAK-RAO, pending in the United States District 15 Court, Central District of California. 16 2.2 Challenging Party: a Party or Non-Party that challenges the designation 17 of information or items under this Order. 18 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 19 how it is generated, stored or maintained) or tangible things that qualify for protection 20 under Federal Rule of Civil Procedure 26(c), and as specified in the Good Cause 21 Statement. 22 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 23 support staff). 24 2.5 Designating Party: a Party or Non-Party that designates information or 25 items that it produces in disclosures or in responses to discovery as 26 “CONFIDENTIAL.” 27 2.6 Disclosure or Discovery Material: all items or information, regardless of 1 among other things, testimony, transcripts, and tangible things), that are produced or 2 generated in disclosures or responses to discovery in this matter. 3 2.7 Expert: a person with specialized knowledge or experience in a matter 4 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 5 expert witness or as a consultant in this action. 6 2.8 House Counsel: attorneys who are employees of a party to this action. 7 House Counsel does not include Outside Counsel of Record or any other outside 8 counsel. 9 2.9 Non-Party: any natural person, partnership, corporation, association, or 10 other legal entity not named as a Party to this action. 11 2.10 Outside Counsel of Record: attorneys who are not employees of a party 12 to this action but are retained to represent or advise a party to this action and have 13 appeared in this action on behalf of that party or are affiliated with a law firm which 14 has appeared on behalf of that party and includes support staff. 15 2.11 Party: any party to this action, including all of its officers, directors, 16 employees, consultants, retained experts, and Outside Counsel of Record (and their 17 support staffs). 18 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 19 Discovery Material in this action. 20 2.13 Professional Vendors: persons or entities that provide litigation support 21 services (e.g., photocopying, videotaping, translating, preparing exhibits or 22 demonstrations, and organizing, storing, or retrieving data in any form or medium) 23 and their employees and subcontractors. 24 2.14 Protected Material: any Disclosure or Discovery Material that is 25 designated as “CONFIDENTIAL.” 26 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 27 from a Producing Party. 1 The protections conferred by this Stipulation and Order cover not only 2 Protected Material (as defined above), but also (1) any information copied or extracted 3 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 4 Protected Material; and (3) any testimony, conversations, or presentations by Parties 5 or their Counsel that might reveal Protected Material. 6 Any use of Protected Material at trial shall be governed by the orders of the trial 7 judge. This Order does not govern the use of Protected Material at trial. 8 4. DURATION 9 Once a case proceeds to trial, information that was designated as 10 CONFIDENTIAL or maintained pursuant to this protective order used or introduced as 11 an exhibit at trial becomes public and will be presumptively available to all members 12 of the public, including the press, unless compelling reasons supported by specific 13 factual findings to proceed otherwise are made to the trial judge in advance of the 14 trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for 15 sealing documents produced in discovery from “compelling reasons” standard when 16 merits-related documents are part of court record). Accordingly, the terms of this 17 protective order do not extend beyond the commencement of the trial. 18 5. DESIGNATING PROTECTED MATERIAL 19 5.1 Exercise of Restraint and Care in Designating Material for Protection. 20 Each Party or Non-Party that designates information or items for protection under this 21 Order must take care to limit any such designation to specific material that qualifies 22 under the appropriate standards. The Designating Party must designate for protection 23 only those parts of material, documents, items, or oral or written communications that 24 qualify so that other portions of the material, documents, items, or communications 25 for which protection is not warranted are not swept unjustifiably within the ambit of 26 this Order. 27 Mass, indiscriminate, or routinized designations are prohibited. Designations 1 purpose (e.g., to unnecessarily encumber or retard the case development process or to 2 impose unnecessary expenses and burdens on other parties) expose the Designating 3 Party to sanctions. 4 If it comes to a Designating Party’s attention that information or items that it 5 designated for protection do not qualify for protection, that Designating Party must 6 promptly notify all other Parties that it is withdrawing the inapplicable designation. 7 5.2 Manner and Timing of Designations. Except as otherwise provided in 8 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 9 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 10 under this Order must be clearly so designated before the material is disclosed or 11 produced. 12 Designation in conformity with this Order requires:(a) for information in 13 documentary form (e.g., paper or electronic documents, but excluding transcripts of 14 depositions or other pretrial or trial proceedings), that the Producing Party affix at a 15 minimum the legend “CONFIDENTIAL” (hereinafter “CONFIDETNIAL legend”), to 16 each page that contains Protected Material. If only a portion or portions of the material 17 on a page qualifies for protection, the Producing Party also must clearly identify the 18 protected portion(s) (e.g., by making appropriate markings in the margins). 19 (b) for testimony given in depositions or in other pretrial or trial 20 proceedings that the Designating Party identifies the Disclosure or Discovery Material 21 on the record, before the close of the deposition, hearing, or other proceeding, all 22 protected testimony. 23 (c) for information produced in some form other than documentary and for any 24 other tangible items, that the Producing Party affix in a prominent place on the 25 exterior of the container or containers in which the information or item is stored the 26 legend “CONFIDENTIAL.” If only a portion or portions of the information or item 27 warrant protection, the Producing Party, to the extent practicable, shall identify the 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 2 failure to designate qualified information or items does not, standing alone, waive the 3 Designating Party’s right to secure protection under this Order for such material. 4 Upon timely correction of a designation, the Receiving Party must make reasonable 5 efforts to assure that the material is treated in accordance with the provisions of this 6 Order. 7 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 8 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 9 designation of confidentiality at any time that is consistent with the Court’s 10 Scheduling Order. 11 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 12 resolution process under Local Rule 37.1 et seq. 13 6.3 The burden of persuasion in any such challenge proceeding shall be on 14 the Designating Party. Frivolous challenges, and those made for an improper 15 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 16 parties) may expose the Challenging Party to sanctions. Unless the Designating 17 Party has waived or withdrawn the confidentiality designation, all parties shall 18 continue to afford the material in question the level of protection to which it is 19 entitled under the Producing Party’s designation until the Court rules on the 20 challenge. 21 7. ACCESS TO AND USE OF PROTECTED MATERIAL 22 7.1 Basic Principles. A Receiving Party may use Protected Material that is 23 disclosed or produced by another Party or by a Non-Party in connection with this 24 Action only for prosecuting, defending, or attempting to settle this Action. Such 25 Protected Material may be disclosed only to the categories of persons and under the 26 conditions described in this Order. When the Action has been terminated, a Receiving 27 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 1 location and in a secure manner that ensures that access is limited to the persons 2 authorized under this Order. 3 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 4 otherwise ordered by the court or permitted in writing by the Designating Party, a 5 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 6 only to: 7 (a) the Receiving Party’s Outside Counsel of Record in this action, as well 8 as employees of said Outside Counsel of Record to whom it is reasonably necessary to 9 disclose the information for this Action; 10 (b) the officers, directors, and employees (including House Counsel) of the 11 Receiving Party to whom disclosure is reasonably necessary for this Action; 12 (c) Experts (as defined in this Order) of the Receiving Party to whom 13 disclosure is reasonably necessary for this litigation and who have signed the 14 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 15 (d) the court and its personnel; 16 (e) court reporters and their staff; 17 (f) professional jury or trial consultants, mock jurors, and Professional 18 Vendors to whom disclosure is reasonably necessary for this litigation and who have 19 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 (g) the author or recipient of a document containing the information or a 21 custodian or other preson who otherwise possessed or knew the information; 22 (h) during their depositions, witnesses and attorneys for witnesses, in the 23 action to whom disclosure is reasonably necessary provided: (1) the deposing party 24 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 25 not be permitted to keep any confidential information unless they sign the 26 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 27 by the Designating Party or ordered by the court. Pages of transcribed deposition 1 bound by the court reporter and may not be disclosed to anyone except as permitted 2 under this Stipulated Protective Order; and 3 (i) any mediator or settlement officer, and their supporting personnel, 4 mutually agreed upon by any of the parties engaged in settlement discussions. 5 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 6 OTHER LITIGATION 7 If a Party is served with a subpoena or a court order issued in other litigation 8 that compels disclosure of any information or items designated in this action as 9 “CONFIDENTIAL,” that Party must: 10 (a) promptly notify in writing the Designating Party. Such notification shall 11 include a copy of the subpoena or court order; 12 (b) promptly notify in writing the party who caused the subpoena or order to 13 issue in the other litigation that some or all of the material covered by the subpoena or 14 order is subject to this Protective Order. Such notification shall include a copy of this 15 Stipulated Protective Order; and 16 (c) cooperate with respect to all reasonable procedures sought to be pursued 17 by the Designating Party whose Protected Material may be affected. 18 If the Designating Party timely seeks a protective order, the Party served with 19 the subpoena or court order shall not produce any information designated in this 20 action as “CONFIDENTIAL” before a determination by the court from which the 21 subpoena or order issued, unless the Party has obtained the Designating Party’s 22 permission. The Designating Party shall bear the burden and expense of seeking 23 protection in that court of its confidential material – and nothing in these provisions 24 should be construed as authorizing or encouraging a Receiving Party in this action to 25 disobey a lawful directive from another court. 26 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 27 IN THIS LITIGATION 1 Non-Party in this action and designated as “CONFIDENTIAL.” Such information 2 produced by Non-Parties in connection with this litigation is protected by the 3 remedies and relief provided by this Order. Nothing in these provisions should be 4 construed as prohibiting a Non-Party from seeking additional protections. 5 (b) In the event that a Party is required, by a valid discovery request, to 6 produce a Non-Party’s confidential information in its possession, and the Party is 7 subject to an agreement with the Non-Party not to produce the Non-Party’s 8 confidential information, then the Party shall: 9 (1) promptly notify in writing the Requesting Party and the Non-Party 10 that some or all of the information requested is subject to a confidentiality agreement 11 with a Non-Party; 12 (2) promptly provide the Non-Party with a copy of the Stipulated 13 Protective Order in this litigation, the relevant discovery request(s), and a reasonably 14 specific description of the information requested; and 15 (3) make the information requested available for inspection by the Non- 16 Party. 17 (c) If the Non-Party fails to object or seek a protective order from this court 18 within 14 days of receiving the notice and accompanying information, the Receiving 19 Party may produce the Non-Party’s confidential information responsive to the 20 discovery request. If the Non-Party timely seeks a protective order, the Receiving 21 Party shall not produce any information in its possession or control that is subject to 22 the confidentiality agreement with the Non-Party before a determination by the court. 23 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 24 of seeking protection in this court of its Protected Material. 25 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 26 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 27 Protected Material to any person or in any circumstance not authorized under this 1 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 2 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 3 persons to whom unauthorized disclosures were made of all the terms of this Order, 4 and (d) request such person or persons to execute the “Acknowledgment and 5 Agreement to Be Bound” that is attached hereto as Exhibit A. 6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 7 PROTECTED MATERIAL 8 When a Producing Party gives notice to Receiving Parties that certain 9 inadvertently produced material is subject to a claim of privilege or other protection, 10 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 11 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 12 may be established in an e-discovery order that provides for production without prior 13 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 14 parties reach an agreement on the effect of disclosure of a communication or 15 information covered by the attorney-client privilege or work product protection, the 16 parties may incorporate their agreement in the stipulated protective order submitted to 17 the court. 18 12. MISCELLANEOUS 19 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 20 person to seek its modification by the court in the future. 21 12.2 Right to Assert Other Objections. By stipulating to the entry of this 22 Protective Order, no Party waives any right it otherwise would have to object to 23 disclosing or producing any information or item on any ground not addressed in this 24 Stipulated Protective Order. Similarly, no Party waives any right to object on any 25 ground to use in evidence of any of the material covered by this Protective Order. 26 12.3 Filing Protected Material. A Party that seeks to file under seal any 27 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 1 specific Protected Material at issue. If a Party’s request to file Protected Material 2 under seal is denied by the court, then the Receiving Party may file the information in 3 the public record unless otherwise instructed by the court. 4 13. FINAL DISPOSITION 5 After the final disposition of this Action, as defined in paragraph 4, within 60 6 days after the final disposition of this action, as defined in paragraph 4, each 7 Receiving Party must return all Protected Material to the Producing Party or destroy 8 such material. As used in this subdivision, “all Protected Material” includes all copies, 9 abstracts, compilations, summaries, and any other format reproducing or capturing 10 any of the Protected Material. Whether the Protected Material is returned or destroyed, 11 the Receiving Party must submit a written certification to the Producing Party (and, if 12 not the same person or entity, to the Designating Party) by the 60 day deadline that (1) 13 identifies (by category, where appropriate) all the Protected Material that was returned 14 or destroyed and (2) affirms that the Receiving Party has not retained any copies, 15 abstracts, compilations, summaries or any other format reproducing or capturing any 16 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 17 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 18 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 19 reports, attorney work product, and consultant and expert work product, even if such 20 materials contain Protected Material. Any such archival copies that contain or 21 constitute Protected Material remain subject to this Protective Order as set forth in 22 Section 4 (DURATION). 23 // 24 // 25 // 26 // 27 // 1 || 14. VIOLATION 2 Any violation of this Order may be punished by appropriate measures 3 |} including, without limitation, contempt proceedings and/or monetary sanctions. 4 5 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 Dated: April 20, 2020 /s/ Claire E. Cochran 7 Claire E. Cochran Attorney for Plaintiff. 8 NADINE JARRARD 9 10 Dated: April 20, 2020 /s/ Michele Ballard Miller 11 Michele Ballard. Miller Attomeys for Defendant 12 G/O MEDIA, INC. 13 14 Certification of Compliance With Central District Local Rule 5-4.3.4 15 I hereby certify that pursuant to Central District of California Local Rule 5- 16 || 4.3.4, I have obtained the authorization from the above signatories representing 17 || Plaintiff Nadine Jarrard to file the above-referenced document, and that the above 18 || signatories concur in the content of this filing. I certify under penalty of perjury 19 || under the laws of the United States of America that the foregoing is true and correct. 20 21 Dated: April 20, 2020 /s/ Michele Ballard Miller 22 Michele Ballard Miller Attorneys for Defendant 23 G/O MEDIA, INC. 24 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 25 26 Razells, , OC DATED: April 20, 2020 _ 27 HON. ROZELLA A. OLIVER 3g United States Magistrate Judge 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury that 5 I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Central District of California on 7 [date] in the case of Nadine Jarrard v. G/O Media, Inc., Case No. 2:19-cv-09557- 8 JAK-RAO. 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 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise 11 that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. 18 I hereby appoint __________________________ [print or type full name] of 19 __________________________________ [print or type full address and telephone 20 number] as my California agent for service of process in connection with this action or 21 any proceedings related to enforcement of this Stipulated Protective Order. 22 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 Printed name: _______________________________ 27