Frazier v. Ulta Beauty Inc. ( 2021 )

1 JULIAN BURNS KING, Bar No. 298617 julian @ kingsiegel.com 2 || ELLIOT J. SIEGEL, Bar No. 286798 3 elliot @kingsiegel.com ROBERT J. KING, Bar No. 302545 4 robert @ kingsiegel.com KING & SIEGEL LLP 5 || 724 South Spring Street, Suite 500 Los Angeles, California 90017 6 Telephone: (213) 419-5101 7 Facsimile: (213) 289-2815 8 Attorneys for Plaintiff SARAH FRAZIER ? BARBARA A. BLACKBURN, Bar No. 253731 19 || bblackburn @littler.com NATHANIEL H. JENKINS, Bar No. 312067 11 nenkins @littler.com NICHOLAS W. MCKINNEY, Bar No. 322792 12 nmckinney @littler.com LITTLER MENDELSON, P.C. 13 500 Capitol Mall Suite 2000 14 Sacramento, CA 95814 Telephone: 916.830.7200 15 Facsimile: 916.561.0828 16 Attorneys for Defendant ULTA SALON, COSMETICS & FRAGRANCE, 17 INC. 18 UNITED STATES DISTRICT COURT 19 EASTERN DISTRICT OF CALIFORNIA 20 SARAH FRAZIER, an individual, No. 2:20-cv-01608-TLN-DB Plaintiff, AMENDED STIPULATED PROTECTIVE 22 ORDER v. 23 ULTA SALON, COSMETICS & 24 || FRAGRANCE, INC., a Delaware 95 corporation and DOES 1-10, inclusive, Defendant. 26 27 28 P.C AMENDED STIPULATED PROTECTIVE Case No. 2:20-cv-01608-TLM-DB een nn ene en en nn nn ne ne OE OS I OO mE 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of confidential, 3 || proprietary, or private information for which special protection from public disclosure and from use 4 || for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties 5 || hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 6 || acknowledge that this Order does not confer blanket protections on all disclosures or responses to 7 || discovery and that the protection it affords from public disclosure and use extends only to the limited 8 || information or items that are entitled to confidential treatment under the applicable legal principles. 9 || The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective 10 || Order does not entitle them to file confidential information under seal; Civil Local Rule 141 sets forth 11 || the procedures that must be followed and the standards that will be applied when a party seeks 12 || 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 information 15 || 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 “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” Information or Items: 20 || extremely sensitive “‘Confidential’ Information or Items” whose disclosure to another Party or non- 21 || party would create a substantial risk of serious injury that could not be avoided by less restrictive 22 || means. 23 2.4 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 24 || as their support staff). 25 2.5 Designating Party: a Party or Non-Party that designates information or items that it 26 || produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 27 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY”. 28 AMENDED STIPULATED 2. Case No. 2:20-cv-01608-TLM-DB enn nnn ene en en ne on nn nn nO OI ON I OO EE 1 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium 2 || or manner in which it is generated, stored, or maintained (including, among other things, testimony, 3 || transcripts, and tangible things), that are produced or generated in disclosures or responses to 4 || discovery in this matter. 5 2.7. Expert: a person with specialized knowledge or experience in a matter pertinent to the 6 || litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant 7 || in this action. 8 2.8 House Counsel: attorneys who are employees of a party to this action. House Counsel 9 || does not include Outside Counsel of Record or any other outside counsel. 10 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal 11 || entity not named as a Party to this action. 12 2.10 Qutside Counsel of Record: attorneys who are not employees of a party to this action 13 || but are retained to represent or advise a party to this action and have appeared in this action on behalf 14 || of that party or are affiliated with a law firm which has appeared on behalf of that party. 15 2.11 Party: any party to this action, including all of its officers, directors, employees, 16 || consultants, retained experts, and Outside Counsel of Record (and their support staffs). 17 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material 18 || in this action. 19 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., 20 || photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, 21 || or retrieving data in any form or medium) and their employees and subcontractors. 22 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 23 || “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEY'S’ EYES ONLY.” 24 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a 25 || Producing Party. 26 || 3. SCOPE 27 The protections conferred by this Stipulation and Order cover not only Protected Material (as 28 || defined above), but also (1) any information copied or extracted from Protected Material; (2) all AMENDED STIPULATED 3. Case No. 2:20-cv-01608-TLM-DB nnn nn ene en en nn on nnn nn nn OI OS I OO 1 || copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 2 || conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 3 || However, the protections conferred by this Stipulation and Order do not cover the following 4 || information: (a) any information that is in the public domain at the time of disclosure to a Receiving 5 || Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 6 || publication not involving a violation of this Order, including becoming part of the public record 7 || through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure 8 || or obtained by the Receiving Party after the disclosure from a source who obtained the information 9 || lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected 10 || Material at trial shall be governed by a separate agreement or order. 11 |] 4. DURATION 12 Even after final disposition of this litigation, the confidentiality obligations imposed by this 13 || Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 14 || otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 15 || defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 16 || and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time 17 || limits for filing any motions or applications for extension of time pursuant to applicable law. 18 |] 5. DESIGNATING PROTECTED MATERIAL 19 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 20 || Non-Party that designates information or items for protection under this Order must take care to limit 21 |) any such designation to specific material that qualifies under the appropriate standards. The 22 || Designating Party must designate for protection only those parts of material, documents, items, or oral 23 || or written communications that qualify — so that other portions of the material, documents, items, or 24 || communications for which protection is not warranted are not swept unjustifiably within the ambit of 25 || this Order. 26 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 27 || to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 28 || encumber or retard the case development process or to impose unnecessary expenses and burdens on AMENDED STIPULATED 4. Case No. 2:20-cv-01608-TLM-DB enn nn nen en en nn on nn nn ne OI OS I OO EE 1 || other parties) expose the Designating Party to sanctions. 2 || Ifit comes to a Designating Party’s attention that information or items that it designated for protection 3 || do not qualify for protection, that Designating Party must promptly notify all other Parties that it is 4 || withdrawing the mistaken designation. 5 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 6 || e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or 7 || Discovery Material that qualifies for protection under this Order must be clearly so designated before 8 || the material is disclosed or produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (e.g., paper or electronic documents, but 11 || excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 12 || affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES 13 || ONLY” to each page that contains protected material. If only a portion or portions of the material on 14 || a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 15 || (e.g., by making appropriate markings in the margins). 16 || A Party or Non-Party that makes original documents or materials available for inspection need not 17 || designate them for protection until after the inspecting Party has indicated which material it would 18 || like copied and produced. During the inspection and before the designation, all of the material made 19 || available for inspection shall be deemed “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL □□ 20 || ATTORNEYS’ EYES ONLY”. After the inspecting Party has identified the documents it wants 21 || copied and produced, the Producing Party must determine which documents, or portions thereof, 22 || qualify for protection under this Order. Then, before producing the specified documents, the Producing 23 || Party must affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES 24 || ONLY” legend to each page that contains Protected Material. If only a portion or portions of the 25 || material on a page qualifies for protection, the Producing Party also must clearly identify the protected 26 || portion(s) (e.g., by making appropriate markings in the margins). 27 /// 28 | /// AMENDED STIPULATED 5. Case No. 2:20-cv-01608-TLM-DB eee nn SEO ISIE I ESI IIE ED Oe 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. 4 (c) for information produced in some form other than documentary and for any other 5 || tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 6 || containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY 7 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY”. If only a portion or portions of the information 8 || or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected 9 || portion(s). 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 11 || designate qualified information or items does not, standing alone, waive the Designating Party’s right 12 || to secure protection under this Order for such material. Upon timely correction of a designation, the 13 || Receiving Party must make reasonable efforts to assure that the material is treated in accordance with 14 || the provisions of this Order. 15 || 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 16 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 17 || confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 18 || designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 19 || or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 20 || confidentiality designation by electing not to mount a challenge promptly after the original designation 21 || is disclosed. 22 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 23 || by providing written notice of the designations it is challenging and describing the basis for the 24 || challenges. The parties shall attempt to resolve each challenge in good faith and must begin the process 25 || by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) 26 || within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the 27 || basis for its belief that the confidentiality designation was not proper and must give the Designating 28 || Party an opportunity to review the designated material, to reconsider the circumstances, and, if no AMENDED STIPULATED 6. Case No. 2:20-cv-01608-TLM-DB nnn nn ene en en nn on nn ne EO NOI OS I OO EE 1 || change in designation is offered, to explain the basis for the chosen designation. A Challenging Party 2 || may proceed to the next stage of the challenge process only if it has engaged in this meet and confer 3 || process first or establishes that the Designating Party is unwilling to participate in the meet and confer 4 || process in a timely manner. 5 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 6 || intervention, the Designating Party shall file and serve a motion to retain confidentiality within 21 7 || days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer 8 || process will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by 9 || acompetent declaration affirming that the movant has complied with the meet and confer requirements 10 || imposed in the preceding paragraph. Failure by the Designating Party to make such a motion including 11 || the required declaration within 21 days (or 14 days, if applicable) shall automatically waive the 12 || confidentiality designation for each challenged designation. In addition, the Challenging Party may 13 || file a motion challenging a confidentiality designation at any time if there is good cause for doing so, 14 || including a challenge to the designation of a deposition transcript or any portions thereof. Any motion 15 || brought pursuant to this provision must be accompanied by a competent declaration affirming that the 16 || movant has complied with the meet and confer requirements imposed by the preceding paragraph. 17 || The burden of persuasion in any such challenge proceeding shall be on the Designating Party. 18 || Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary 19 || expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the 20 || Designating Party has waived the confidentiality designation by failing to file a motion to retain 21 || confidentiality as described above, all parties shall continue to afford the material in question the level 22 || of protection to which it is entitled under the Producing Party’s designation until the court rules on the 23 || challenge. 24 || 7. ACCESS TO AND USE OF PROTECTED MATERIAL 25 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 26 || produced by another Party or by a Non-Party in connection with this case only for prosecuting, 27 || defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the 28 || categories of persons and under the conditions described in this Order. When the litigation has been AMENDED STIPULATED 7. Case No. 2:20-cv-01608-TLM-DB enn nn nen en en nn on nn ne nO OO I OS I OO EE 1 || terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 2 || DISPOSITION). 3 || Protected Material must be stored and maintained by a Receiving Party at a location and in a secure 4 || manner that ensures that access is limited to the persons authorized under this Order. 5 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 6 || the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 7 || information or item designated “CONFIDENTIAL” only to: 8 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 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 || Bound” that is attached hereto as Exhibit A; 12 (b) the officers, directors, and employees (including House Counsel) of the Receiving 13 || Party to whom disclosure is reasonably necessary for this litigation and who have signed the 14 || “Acknowledgment and Agreement to Be Bound” (Exhibit A); 15 (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 to 17 || Be Bound” (Exhibit A); 18 (d) the court and its personnel; 19 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, 20 || and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 21 || signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 22 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 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 bound 26 || by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated 27 || Protective Order. 28 /// AMENDED STIPULATED 8. Case No. 2:20-cv-01608-TLM-DB nnn nnn nen en en nn nn nn ne EO OI OS I OO EE 1 (g) the author or recipient of a document containing the information or a custodian or 2 || other person who otherwise possessed or knew the information. 3 7.3. Disclosure of “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY ” 4 || Information or Items. Unless otherwise ordered by the Court or permitted in writing by the 5 || Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 6 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY” only to: 7 (a) the Receiving Party’s Outside Counsel of record in this action, as well as employees 8 || of said Counsel to whom it is reasonably necessary to disclose the information for this litigation and 9 || who have signed the “Agreement to Be Bound by Protective Order” that is attached hereto as 10 || Exhibit A; 11 (b) House Counsel of a Receiving Party (1) to whom disclosure is reasonably necessary 12 || for this litigation, and (2) who has signed the “Agreement to Be Bound by Protective Order” 13 || (Exhibit A); 14 (c) experts (as defined in this Order) (1) to whom disclosure is reasonably necessary 15 || for this litigation and (2) who have signed the “Agreement to Be Bound by Protective Order” 16 || (Exhibit A); 17 (d) the Court and its personnel as set forth in Paragraph 10 below and pursuant to Rule 18 || 2.551 of the California Rules of Court; 19 (e) court reporters, their staffs, and professional vendors to whom disclosure is 20 || reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by 21 || Protective Order” (Exhibit A); 22 (f) the author of the document or the original source of the information. 23 || 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 24 LITIGATION 25 If a Party is served with a subpoena or a court order issued in other litigation that compels 26 || disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY 27 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY,” that Party must: 28 /// AMENDED STIPULATED ?. Case No. 2:20-cv-01608-TLM-DB 1 (a) promptly notify in writing the Designating Party. Such notification shall include a 2 || copy of the subpoena or court order; 3 (b) promptly notify in writing the party who caused the subpoena or order to issue in 4 || the other litigation that some or all of the material covered by the subpoena or order is subject to this 5 || Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 6 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 7 || Designating Party whose Protected Material may be affected. 8 If the Designating Party timely seeks a protective order, the Party served with the subpoena or 9 || court order shall not produce any information designated in this action as “CONFIDENTIAL” or 10 || “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY,” before a determination by the court 11 || from which the subpoena or order issued, unless the Party has obtained the Designating Party’s 12 || permission. The Designating Party shall bear the burden and expense of seeking protection in that 13 || court of its confidential material — and nothing in these provisions should be construed as authorizing 14 || or encouraging a Receiving Party in this action to disobey a lawful directive from another court. 15 |] 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 16 LITIGATION 17 (a) The terms of this Order are applicable to information produced by a Non-Party in 18 || this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ 19 || EYES ONLY,” Such information produced by Non-Parties in connection with this litigation is 20 || protected by the remedies and relief provided by this Order. Nothing in these provisions should be 21 || construed as prohibiting a Non-Party from seeking additional protections. 22 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 23 || Party’s confidential information in its possession, and the Party is subject to an agreement with the 24 || Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 25 (1) promptly notify in writing the Requesting Party and the Non-Party that 26 || some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 27 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 28 || Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the A MEND ED STIPUL ATED 10. Case No. 2:20-cv-01608-TLM-DB eee ee OI IIE III IIE OS IEEE IR EINE IIE ESE eee 1 || information requested; and 2 (3) make the information requested available for inspection by the Non-Party. 3 (c) If the Non-Party fails to object or seek a protective order from this court within 14 4 || days of receiving the notice and accompanying information, the Receiving Party may produce the 5 || Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 6 || seeks a protective order, the Receiving Party shall not produce any information in its possession or 7 || control that is subject to the confidentiality agreement with the Non-Party before a determination by 8 || the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 9 || seeking protection in this court of its Protected Material. 10 |} 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 12 || Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 13 || the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 14 || disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 15 || inform the person or persons to whom unauthorized disclosures were made of all the terms of this 16 || Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be 17 || Bound” that is attached hereto as Exhibit A. 18 |} 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 19 MATERIAL 20 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 21 || material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 22 || are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 23 || modify whatever procedure may be established in an e-discovery order that provides for production 24 || without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 25 || parties reach an agreement on the effect of disclosure of a communication or information covered by 26 || the attorney-client privilege or work product protection, the parties may incorporate their agreement 27 || in the stipulated protective order submitted to the court. 28 /// AMENDED STIPULATED 11. Case No. 2:20-cv-01608-TLM-DB een eee ON IE III IIE OS IRIE I EINE IIR EE eee 1 |) 12. MISCELLANEOUS 2 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 3 || its modification by the court in the future. 4 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 5 || no Party waives any right it otherwise would have to object to disclosing or producing any information 6 || or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives 7 || any right to object on any ground to use in evidence of any of the material covered by this Protective 8 || Order. 9 12.3. Filing Protected Material. Without written permission from the Designating Party or a 10 || court order secured after appropriate notice to all interested persons, a Party may not file in the public 11 || record in this action any Protected Material. A Party that seeks to file under seal any Protected Material 12 || must comply with Civil Local Rule 141. Protected Material may only be filed under seal pursuant to 13 || acourt order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local 14 || Rule 141, a sealing order will issue only upon a request establishing that the Protected Material at 15 || issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a 16 || Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 141 is 17 || denied by the court, then the Receiving Party may file the information in the public record unless 18 || otherwise instructed by the court. 19 || 13. FINAL DISPOSITION 20 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 21 || Receiving Party must return all Protected Material to the Producing Party or destroy such material. As 22 || used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 23 || summaries, and any other format reproducing or capturing any of the Protected Material. Whether the 24 || Protected Material is returned or destroyed, the Receiving Party must submit a written certification to 25 || the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day 26 || deadline that (1) identifies (by category, where appropriate) all the Protected Material that was 27 || returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, 28 || compilations, summaries or any other format reproducing or capturing any of the Protected Material. AMENDED STIPULATED 12. Case No. 2:20-cv-01608-TLM-DB een nee IEE III OS IRE EINE REE ee 1 || Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion 2 || papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and 3 || trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if 4 || such materials contain Protected Material. Any such archival copies that contain or constitute 5 || Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION). 6 7 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 8 DATED: _ 2/8/2021 /s/Robert J. King (as approved on 2/8/21) 9 Attorneys for Plaintiff 10 11 DATED: _ 2/8/2021 ___— 4s/Nathaniel H. Jenkins 12 Attorneys for Defendant 13 14 15 ORDER 16 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 17 IT IS FURTHER ORDERED THAT: 18 1. Requests to seal documents shall be made by motion before the same judge who will decide 19 || the matter related to that request to seal. 20 2. The designation of documents (including transcripts of testimony) as confidential pursuant 21 |] to this order does not automatically entitle the parties to file such a document with the court under 22 || seal. Parties are advised that any request to seal documents in this district is governed by Local Rule 23 141. In brief, Local Rule 141 provides that documents may only be sealed by a written order of the 24 || court after a specific request to seal has been made. L.R. 141(a). However, a mere request to seal is 25 || not enough under the local rules. In particular, Local Rule 141(b) requires that “[t]he “Request to Seal 26 || Documents’ shall set forth the statutory or other authority for sealing, the requested duration, the 27 || identity, by name or category, of persons to be permitted access to the document, and all relevant 28 || information.” L.R. 141(b). AMENDED STIPULATED 13. Case No. 2:20-cv-01608-TLM-DB 1 3. A request to seal material must normally meet the high threshold of showing that 2 || “compelling reasons” support secrecy; however, where the material is, at most, “tangentially related” 3 || to the merits of a case, the request to seal may be granted on a showing of “good cause.” Ctr. for Auto 4 || Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and 5 || County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 6 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of certain 7 || documents, at any court hearing or trial — such determinations will only be made by the court at the 8 || hearing or trial, or upon an appropriate motion. 9 5. With respect to motions regarding any disputes concerning this protective order which the 10 || parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 251. 11 || Absent a showing of good cause, the court will not hear discovery disputes on an ex parte basis or on 12 || shortened time. 13 6. The parties may not modify the terms of this Protective Order without the court’s approval. 14 || Ifthe parties agree to a potential modification, they shall submit a stipulation and proposed order for 15 || the court’s consideration. 16 7. Pursuant to Local Rule 141.1(, the court will not retain jurisdiction over enforcement of 17 || the terms of this Protective Order after the action is terminated. 18 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 19 || hereby DISAPPROVED. 20 || DATED: February 9, 2021 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 AMENDED STIPULATED 14. Case No. 2:20-cv-01608-TLM-DB een eee OIE III IIE OS IRE EINE IIR EE eee 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND L [print or type full name], of [print or type 4 || full address], declare under penalty of perjury that I have read in its entirety and understand the 5 || Stipulated Protective Order that was issued by the United States District Court for the Eastern District 6 || of California on [date] in the case of Sarah Frazier v. Ulta Salon, Cosmetics & Fragrance, Inc., et al. 7 || I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I 8 || understand and acknowledge that failure to so comply could expose me to sanctions and punishment 9 || in the nature of contempt. I solemnly promise that I will not disclose in any manner any information 10 || or item that is subject to this Stipulated Protective Order to any person or entity except in strict 11 || compliance with the provisions of this Order. 12 || I further agree to submit to the jurisdiction of the United States District Court for the Eastern District 13 || of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such 14 || enforcement proceedings occur after termination of this action. 15 || I hereby appoint [print or type full name] of 16 [print or type full address and telephone number] as 17 || my California agent for service of process in connection with this action or any proceedings related to 18 || enforcement of this Stipulated Protective Order. 19 20 Date: > City and State where sworn and signed: 22 53 Printed name: 24 95 Signature: 26 27 28 AMENDED STIPULATED IS. Case No. 2:20-cv-01608-TLM-DB