Clark v. QG Printing II, LLC ( 2019 )

1 GREGORY G. ISKANDER, Bar No. 200215 LITTLER MENDELSON, P.C. 2 Treat Towers 1255 Treat Boulevard, Suite 600 3 Walnut Creek, California 94597 Telephone: 925.932.2468 4 Facsimile: 925.946.9809 Email: giskander@littler.com 5 JAMES P. VAN, Bar No. 303853 6 LITTLER MENDELSON, P.C. 2050 Main Street, Suite 900 7 Irvine, CA 92614 Telephone: 949.705.3000 8 Facsimile: 949.724.1201 Email: jpvan@littler.com 9 10 Attorneys for Defendants QG PRINTING II, LLC and QUAD/GRAPHICS, INC. 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 FRESNO DIVISION 14 15 PAUL CLARK, individually, and on behalf Case No. 1:18-cv-00899-AWI-EPG 16 of other members of the general public similarly situated, STIPULATED AND PROTECTIVE 17 ORDER Plaintiffs, 18 v. 19 Trial Date: TBD QG PRINTING II, LLC, a Connecticut 20 limited liability company; QUAD/GRAPHICS, INC., a Wisconsin 21 corporation; and DOES 1 through 10, inclusive, 22 Defendants. 23 24 RECITALS & GOOD CAUSE STATEMENT 25 WHEREAS, Plaintiff PAUL CLARK (“Plaintiff”) and Defendants QG PRINTING II, 26 LLC and QUAD/GRAPHICS, INC. (collectively “Defendants”) (all referred to as the “Parties”) in the 27 above-captioned coordinated matter have agreed that the instant litigation will likely involve the 28 discovery and use of confidential, non-public, sensitive, and/or proprietary business, employment, 1 trade secret, financial, and/or personally identifiable information, documents and other materials; 2 WHEREAS, such confidential and proprietary materials and information may consist 3 of, among other things, confidential business or financial information, information regarding 4 confidential business practices, class contact information, employee personnel documents (including 5 information implicating privacy rights of third parties), and information otherwise generally 6 unavailable to the public, or which may be privileged or otherwise protected from public disclosure 7 under state or federal statutes, court rules, case decisions, or common law; 8 WHEREAS, the unauthorized public disclosure of such confidential, private and/or 9 proprietary materials and information may result in significant and unwarranted harm to the Parties 10 and/or third parties; 11 WHEREAS, the Parties have agreed to produce such documents only on the agreement 12 that such “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” information or items will 13 be disclosed only as provided in this Stipulated Protective and Clawback Order (the “Order” or 14 “Protective Order”) or as otherwise ordered by the Court; 15 WHEREAS, the Parties further wish to ensure that class contact information is 16 protected from disclosure, kept confidential and used only for purposes appropriate to this litigation, 17 as well as to require appropriate ground rules for such contact; 18 WHEREAS, the Parties therefore agree that to ensure that third-parties’ private contact 19 information is adequately protected, the Parties choose to follow the notice 20 process sanctioned by Federal District Court, Central District of California in York v. Starbucks Corp., 21 2009 U.S. Dist. LEXIS 92274, *4-5, 2009 WL 3177605 (C.D. Cal. June 30, 2009); 22 WHEREAS, the Parties have also agreed to protect certain privileged and otherwise 23 protected documents, data (including electronically stored information) and other information, 24 including without limitation, metadata (collectively “Documents”), against claims of waiver and 25 inadvertent production in the event they are produced during the course of this litigation whether 26 pursuant to a Court Order, a Parties’ discovery request or informal production; 27 WHEREAS, in order to comply with applicable discovery deadlines, a party may be 28 required to produce certain categories of Documents that have been subject to minimal or no attorney 1 review (the “Disclosures”). This Protective Order is designed to foreclose any arguments that by 2 making such Disclosures, the disclosure or production of Documents subject to a legally recognized 3 claim of privilege, including without limitation the attorney-client privilege, work-product doctrine, 4 or other applicable privilege: 5 a. was not inadvertent by the Producing Party; 6 b. that the Producing Party did not take reasonable steps to prevent the disclosure 7 of privileged Documents; 8 c. that the Producing Party did not take reasonable or timely steps to rectify such 9 Disclosure; and/or 10 d. that such Disclosure acts as a waiver of applicable privileges or protections 11 associated with such Documents. 12 WHEREAS, because the purpose of this Order is to protect and preserve privileged 13 Documents, the Parties agree they are bound as follows from and after the date their counsel have 14 signed it, even if such execution occurs prior to Court approval. 15 THEREFORE, the Parties seek the entry of the Order governing the disclosure of 16 documents and information designated as “Confidential” or “Highly Confidential – Attorneys’ Eyes 17 Only” on the terms set forth below, as well as an Order, governing the return of inadvertently produced 18 documents and data and affording them the protections on the terms set forth below. 19 THE PARTIES AGREE AS FOLLOWS: 20 1. DEFINITIONS 21 a. “Confidential” Information or Items: Information (regardless of how 22 generated, stored or maintained) that has not been made public or is not otherwise available or 23 accessible in the public domain and that concerns or relates to the confidential or proprietary 24 information of either Party or any third parties. Further, Confidential Information is information for 25 which disclosure is likely to have the effect of causing harm to either Party, or person from whom the 26 information was obtained, or to the Parties’ or third-parties’ privacy. Confidential Information also 27 includes private information pertaining to Defendants’ employees, for which the Parties or any third 28 party have a duty to maintain confidentially. 1 b. Counsel (without qualifier): Outside Counsel and House Counsel (as well as 2 their support staffs). 3 c. Designating Party: a Party that designates information or items that it produces 4 in disclosures or in responses to discovery as “Confidential” or “Highly Confidential – Attorneys’ 5 Eyes Only.” 6 d. Disclosures or Discovery Material: all items or information, regardless of the 7 medium or manner generated, stored, or maintained (including, among other things, documents, data, 8 testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to 9 another party in this matter. 10 e. Expert: a person with specialized knowledge or experience in a matter pertinent 11 to the litigation who has been retained by a Party or its Counsel to serve as an expert witness or as a 12 consultant in this action and who is not a past or a current employee of a Party or of a competitor of a 13 Party and who, at the time of retention, is not anticipated to become an employee of a Party or a 14 competitor of a Party. This definition includes a professional jury or trial consultant retained in 15 connection with this litigation. 16 f. “Highly Confidential – Attorneys’ Eyes Only” Information or Items: extremely 17 sensitive “Confidential” Information or Items whose disclosure to another Party or nonparty would 18 create a substantial risk of serious harm that could not be avoided by less restrictive means. 19 g. House Counsel: attorneys who are employees of a Party. 20 h. Outside Counsel: attorneys who are not employees of a Party but who are 21 retained to represent or advise a Party in this action. 22 i. Party: any party to this action, including all of its officers, directors, employees, 23 agents, consultants, retained experts, House and Outside counsel (and their support staff). 24 j. Producing Party: a Party that produces Disclosure or Discovery Material in this 25 action. 26 k. Professional Vendors: persons or entities that provide litigation support 27 services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; 28 1 organizing, storing, retrieving data in any form or medium; etc.) and their employees and 2 subcontractors. 3 l. Protected Material: any Disclosure or Discovery Material that is designated as 4 “Confidential” or as “Highly Confidential – Attorneys’ Eyes Only” pursuant to this Order. 5 m. Receiving Party: a Party that receives Disclosure or Discovery Material from 6 a Producing Party in this action. 7 2. SCOPE 8 The protections conferred by this Order cover not only Protected Material (as defined 9 above), but also any information copied or extracted therefrom, as well as all copies, excerpts, 10 summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or 11 Counsel to or in Court or in other settings that might reveal Protected Material. 12 3. DURATION 13 Even after the termination of this litigation, the confidentiality obligations imposed by 14 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court order 15 otherwise directs. 16 4. DESIGNATING PROTECTED MATERIAL 17 a. Exercise of Restraint and Care in Designating Material for Protection. Each 18 Party or non-party that designates information or items for protection under this Order must take care 19 to limit any such designation to specific material that qualifies under appropriate standards. A 20 Designating Party must take care to designate for protection only those parts of material, documents, 21 items, or oral or written communications that qualify – so that other portions of the material 22 documents, items, or communications for which protection is not warranted are not swept unjustifiably 23 within the ambit of this Order. 24 If it comes to a Party’s attention that information or items that it designated for 25 protection do not qualify for protection at all, or do not qualify for the level of protection initially 26 asserted, that Party must promptly notify the other Party that it is withdrawing the mistaken 27 designation. 28 1 b. Manner and Timing of Designations. Except as otherwise provided in this 2 Order (see, e.g., second paragraph of Paragraph 4(b)(i) below), or as otherwise agreed or ordered, 3 material that qualifies for protection under this Order must be clearly so designated before the material 4 is disclosed or produced. 5 Designation in conformity with this Order requires: 6 i. For information in documentary form (apart from transcripts of 7 depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on each page 9 that contains protected material. If only a portion or portions of the material on a page qualifies for 10 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 11 appropriate markings in the margins) and must specify, for each portion, the level of protection being 12 asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 13 ONLY”). 14 In the event that a party makes documents available for inspection, rather than 15 delivering copies to another party, no marking need be made in advance of the initial inspection. For 16 purposes of the initial inspection, all documents produced shall be considered as marked “HIGHLY 17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Thereafter, upon the inspecting party’s selection 18 of documents for copying, the Producing Party may mark the copies “CONFIDENTIAL” or 19 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” pursuant to this Order. 20 For testimony given in deposition or in other pretrial or trial proceedings, that the 21 Party offering or sponsoring the testimony identify on the record, before the close of the deposition, 22 hearing, or other proceeding, all protected testimony, and further specify any portions of the testimony 23 that qualify as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” When it is impractical 24 to identify separately each portion of testimony that is entitled to protection, and when it appears that 25 substantial portions of the testimony may qualify for protection, the Party that sponsors, offers, or 26 gives the testimony may notify the other Party within twenty (20) days after the transcript is made 27 available to identify the specific portions of the testimony as to which protection is sought and to 28 specify the level of protection being asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 1 ATTORNEYS’ EYES ONLY”). 2 Transcript pages containing Protected Material must be separately bound by the court 3 reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” or “HIGHLY 4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as instructed by the Party offering or sponsoring 5 the witness or presenting the testimony. 6 ii. For information produced in some form other than documentary, 7 and for any other tangible items, that the Producing Party affix in a prominent place on the exterior 8 of the disk, container or containers in which the information or item is stored the legend 9 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Unless 10 otherwise stated in writing by the Designating Party, all documents and information contained therein 11 must be treated according to the designation specified. If only portions of the information or item 12 warrant protection, the Producing Party, to the extent practicable, shall identify the protected portions, 13 specifying whether they qualify as “CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL – 14 ATTORNEYS’ EYES ONLY.” 15 c. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 16 designate qualified information or items as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 17 ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating Party’s right to secure 18 protection under this Order for such material. If material is appropriately designated as 19 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” after the 20 material was initially produced, the Receiving Party, on timely notification of the designation, must 21 make reasonable efforts to assure that the material is treated in accordance with the provisions of this 22 Order from that point forward. The Designating Party may seek relief to address any situation where 23 the Receiving Party refuses, either directly or indirectly, to accord proper treatment of materials after 24 notice of an inadvertent failure to designate by the Designating Party. 25 d. Use of Confidential and Highly Confidential-Attorneys’ Eyes Only Material. 26 Documents and other material designated “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL – 27 ATTORNEYS’ EYES ONLY” shall be used solely and exclusively for preparing for and prosecuting 28 this case, including any claims on behalf of the named plaintiff(s) and any putative class members 1 pending the completion of the judicial process, including appeal. “CONFIDENTIAL” and “HIGHLY 2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Documents and other material cannot be used for 3 any other purpose in any other matter or proceeding for any reason whatsoever. 4 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 a. Timing of Challenges. If the Receiving Party wishes to challenge the 6 Confidentiality Designation of a particular document or information, it must do so by letter or email 7 to Counsel for the Designating Party within fourteen (14) days of receipt of such document or 8 information, or within fourteen (14) days of discovery of material information giving rise to such a 9 challenge. Failure to challenge a confidentiality designation within this time frame shall operate as a 10 waiver to future challenges. Until agreement is reached between Parties as to a Confidentiality 11 Designation or the Court rules on a judicial challenge to a Confidentiality Designation pursuant to the 12 procedures set forth in this paragraph, the document shall be treated as “CONFIDENTIAL” or 13 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to this Agreement. 14 b. Meet and Confer. A Party that elects to initiate a challenge to a Designating 15 Party’s confidentiality designation must do so in good faith and must confer directly (in voice to voice 16 dialogue or via email or letter) with Counsel for the Designating Party. In conferring, the challenging 17 Party must explain the basis for its belief that the confidentiality designation was not proper and must 18 give the Designating Party an opportunity to review the designated material, to reconsider the 19 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 20 designation. A challenging Party may proceed to the next stage of the challenge process only if it has 21 engaged in this meet and confer process first. 22 c. Judicial Intervention. A challenging Party that elects to press a challenge to a 23 confidentiality designation after considering the justification offered by the Designating Party may, 24 within twenty-one (21) days after the meet and confer process ends, move the Court for an Order 25 determining whether the item has been properly designated as confidential, identifying the challenged 26 material and setting forth in detail the basis for the challenge. Each such motion must be accompanied 27 by a competent declaration that affirms that (1) the movant has complied with the meet and confer 28 requirements imposed in the preceding paragraph; (2) the material has been maintained as 1 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” while the 2 dispute is being resolved; and (3) sets forth with specificity the justification for the confidentiality 3 designation that was given by the Designating Party during the meet and confer process. 4 The burden of persuasion in any such challenge proceeding shall be on the Designating 5 Party. Until the court rules on the challenge, all Parties shall continue to afford the material in question 6 the level of protection to which it is entitled under the Producing Party’s designation. 7 6. ACCESS TO AND USE OF PROTECTED MATERIAL 8 a. Basic Principles. A Receiving Party may use Protected Material that is 9 disclosed or produced by another Party in connection with this case only for prosecuting, defending, 10 or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories 11 of persons and under the conditions described in this Order. When the litigation has been terminated, 12 a Receiving Party must comply with the provisions of Paragraph 10 below (FINAL DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a location 14 and in a secure manner that ensures that access is limited to the persons authorized under this Order. 15 b. Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 16 ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose 17 any information or item designated CONFIDENTIAL only to: 18 i. the Receiving Party’s Outside Counsel of record in this action, as well 19 as employees of said Outside Counsel engaged in the representation of the Parties in the above- 20 captioned action; 21 ii. the Parties (if an entity, this includes present and former officers, 22 directors, agents and employees (including House Counsel)); 23 iii. Experts (as defined in this Order) of the Receiving Party to whom 24 disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be Bound 25 by Protective Order” (Exhibit A); 26 iv. the Court and its personnel, subject to the procedures of Paragraph 9 27 below; 28 1 v. court reporters, third party neutrals, their staff, and professional vendors 2 retained for purposes of this litigation; 3 vi. potential, anticipated or actual fact witnesses and their counsel to whom 4 disclosure is reasonably necessary and who have signed the “Agreement to Be Bound by Protective 5 Order” (Exhibit A); and 6 vii. the author of the document or the original source of the information. 7 c. Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 8 Information or Items. Unless otherwise ordered by the Court or permitted in writing by the 9 Designating Party, a Receiving Party may disclose any 10 information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only 11 to: 12 i. the Receiving Party’s Outside Counsel of record in this action, as well 13 as employees of said Outside Counsel engaged in the representation of the Parties in the above- 14 captioned action; 15 ii. House Counsel of the Receiving Party; 16 iii. Experts (as defined in this Order) of the Receiving Party (1) to whom 17 disclosure is reasonably necessary for this litigation; and (2) who have signed the “Agreement to Be 18 Bound by Protective Order” (Exhibit A); 19 iv. the Court and its personnel, subject to the procedures of Paragraph 9 20 below; 21 v. court reporters, their staff, third party neutrals, and professional vendors 22 retained for purposes of this litigation; and 23 vi. the author of the document or the original source of the information. 24 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 25 OTHER LITIGATION 26 If a Receiving Party is served with a subpoena or an order issued in other litigation that 27 would compel disclosure of any information or items designated in this action as “CONFIDENTIAL” 28 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the Receiving Party must so notify 1 the Designating Party, in writing (by email or fax, if possible) immediately and in no event more than 2 three (3) court days after receiving the subpoena or order. Such notification must include a copy of 3 the subpoena or court order. The Receiving Party also must immediately inform in writing the Party 4 who caused the subpoena or order to issue in the other litigation that some or all the material covered 5 by the subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must 6 deliver a copy of this Protective Order promptly to the Party in the other action that caused the 7 subpoena or order to issue. Under no circumstances shall the Receiving Party produce 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” absent a 9 specific Order by the Court after an appropriate Motion to Quash and/or Compel has been filed. 10 The purpose of imposing these duties is to alert the interested parties to the existence 11 of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect 12 its confidentiality interests in the court from which the subpoena or order issued. The Designating 13 Party shall bear the burdens and the expenses of seeking protection in that court of its confidential 14 material – and nothing in these provisions should be construed as authorizing or encouraging a 15 Receiving Party in this action to disobey a lawful directive from another court. 16 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 17 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 18 Material to any person or in any circumstance not authorized under this Protective Order, the 19 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 20 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person 21 or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request 22 such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached 23 hereto as Exhibit A. 24 9. FILING CONFIDENTIAL OR HIGHLY CONFIDENTIAL MATERIAL 25 Where any Confidential or Highly Confidential – Attorneys’ Eyes Only information or 26 materials are included in any motion or other proceeding governed by California Rules of Court, 27 Rules 2.550 and 2.551, the party shall follow those rules. With respect to discovery motions or 28 other proceedings not governed by California Rules of Court, Rules 2.550 and 2.551, the following 1 shall apply: If Confidential or Highly Confidential – Attorneys’ Eyes Only information or material 2 are submitted to or otherwise disclosed to the Court in connection with discovery motions and 3 proceedings, the same shall be separately filed under seal with the clerk of the Court in an envelope 4 marked: “CONFIDENTIAL – FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER 5 AND WITHOUT ANY FURTHER SEALING ORDER REQUIRED.” 6 10. FINAL DISPOSITION 7 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) 8 days after the final termination of this action (including any appeals), each Receiving Party must either: 9 (1) return all Protected Material to the Producing Party; or (2) destroy all Protected Material, including 10 electronic materials. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 11 compilations, summaries or any other form of reproducing or capturing of any of the Protected 12 Material. Upon request by the Designating Party, the Receiving Party must submit a written 13 certification to the Designating Party by the sixty (60) day deadline that identifies (by category, where 14 appropriate) all the Protected Material that was returned or destroyed and that affirms that the 15 Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of 16 reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are 17 entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, 18 correspondence or attorney work product, even if such materials contain Protected Material. Any such 19 archival copies that contain or constitute Protected Material remain subject to this Protective Order as 20 set forth in Paragraph 3 (DURATION) above. 21 11. YORK V. STARBUCKS AGREEMENT 22 The Parties hereby agree that contact information for the putative class is protected by 23 the employees’ right to privacy, and it shall be designated as “CONFIDENTIAL” as defined by 24 Paragraph 1 of this Protective Order before being produced to Plaintiff’s Counsel. 25 In addition, the Parties agree that, at the outset of Plaintiff’s Counsels’ (or their 26 designees’), first contact with each current or former employee whose contact information is provided 27 by Defendants through discovery in this litigation, Plaintiff’s Counsels’ (or their designee) will inform 28 each contacted individual that (a) the decision whether to talk with Plaintiff’s Counsel is voluntary 1 and the individual has the right not to talk with Plaintiff’s Counsel (or their designee) and (b) that, if 2 he or she elects not to talk to Counsel (or their designee), Counsel (or their designee) will terminate 3 the contact and not contact them again. 4 Plaintiff’s Counsel (or their designee) will also inform each individual that his or her 5 refusal to speak with counsel will not prejudice his or her rights as a putative class member should the 6 Court certify the class. 7 Plaintiff’s Counsel (or their designee) will keep a list of all individuals contacted and 8 all individuals who make it known that they do not want to be contacted and preserve that list for the 9 Court. 10 12. CLAWBACK AGREEMENT 11 The Parties agree to and the Court orders protection of privileged and otherwise 12 protected Documents against claims of waiver (including as against third parties and in other federal 13 and state proceedings) as follows: 14 a. The disclosure or production of Documents by a Producing Party subject to a 15 legally recognized claim of privilege, including without limitation the attorney-client privilege and the 16 work-product doctrine, to a Receiving Party, shall in no way constitute the voluntary disclosure of 17 such Document. 18 b. The inadvertent disclosure or production of any Document in this action shall 19 not result in the waiver of any privilege, evidentiary protection or other protection associated with 20 such Document as to the Receiving Party or any third parties, and shall not result in any waiver, 21 including subject matter waiver, of any kind. 22 c. If, during the course of this litigation, a party determines that any Document 23 produced by another party is or may reasonably be subject to a legally recognizable privilege or 24 evidentiary protection (“Protected Document”): 25 i. the Receiving Party shall: (A) refrain from reading the Protected 26 Document any more closely than is necessary to ascertain that it is privileged or otherwise protected 27 from disclosure; (B) immediately notify the Producing Party in writing that it has discovered 28 Documents believed to be privileged or protected; (C) specifically identify the Protected Documents 1 by Bates number range or hash value, and, (D) within ten (10) days of discovery by the Receiving 2 Party, return, sequester, or destroy all copies of such Protected Documents, along with any notes, 3 summaries, abstracts or compilations of the content thereof. To the extent that a Protected Document 4 has been loaded into a litigation review database under the control of the Receiving Party, the 5 Receiving Party shall have all electronic copies of the Protected Document extracted from the 6 database. Where such Protected Documents cannot be destroyed or separated, they shall not be 7 reviewed, disclosed, or otherwise used by the Receiving Party. Notwithstanding, the Receiving Party 8 is under no obligation to search or review the Producing Party’s Documents to identify potentially 9 privileged or work product Protected Documents. 10 ii. If the Producing Party intends to assert a claim of privilege or other 11 protection over Documents identified by the Receiving Party as Protected Documents, the Producing 12 Party will, within ten (10) days of receiving the Receiving Party’s written notification described above, 13 inform the Receiving Party of such intention in writing and shall provide the Receiving Party with a 14 log for such Protected Documents setting forth the basis for the claim of privilege or other protection. 15 In the event that any portion of a Protected Document does not contain privileged or protected 16 information, the Producing Party shall also provide to the Receiving Party a redacted copy of the 17 document that omits the information that the Producing Party believes is subject to a claim of privilege 18 or other protection. 19 d. If, during the course of this litigation, a party determines it has produced a 20 Protected Document: 21 i. The Producing Party may notify the Receiving Party of such inadvertent 22 production in writing, and demand the return of such documents. Such notice shall be in writing, 23 however, it may be delivered orally on the record at a deposition, promptly followed up in writing. 24 The Producing Party’s written notice will identify the Protected Document inadvertently produced by 25 bates number range or hash value, the privilege or protection claimed, and the basis for the assertion 26 of the privilege and shall provide the Receiving Party with a log for such Protected Documents setting 27 forth the basis for the claim of privilege or other protection. In the event that any portion of the 28 Protected Document does not contain privileged or protected information, the Producing Party shall 1 also provide to the Receiving Party a redacted copy of the Document that omits the information that 2 the Producing Party believes is subject to a claim of privilege or other protection. 3 ii. The Receiving Party must, within ten (10) days of receiving the 4 Producing Party’s written notification described above, return, sequester, or destroy the Protected 5 Document and any copies, along with any notes, summaries, abstracts or compilations of the content 6 thereof. To the extent that a Protected Document has been loaded into a litigation review database 7 under the control of the Receiving Party, the Receiving Party shall have all electronic copies of the 8 Protected Document extracted from the database. 9 e. To the extent that the information contained in a Protected Document has 10 already been used in or described in other documents generated or maintained by the Receiving Party 11 prior to the date of receipt of written notice by the Producing Party as set forth in Paragraphs 11(c)(ii) 12 and 11(d)(i), then the Receiving Party shall sequester such documents until the claim has been 13 resolved. If the Receiving Party disclosed the Protected Document before being notified of its 14 inadvertent production, it must take all reasonable steps to retrieve it. 15 f. The Receiving Party’s return, sequestering or destruction of Protected 16 Documents as provided herein will not act as a waiver of the Requesting Party’s right to move for the 17 production of the returned, sequestered or destroyed documents on the grounds that the documents are 18 not, in fact, subject to a viable claim of privilege or protection. However, the Receiving Party is 19 prohibited and estopped from arguing that: 20 i. the disclosure or production of the Protected Documents acts as a waiver 21 of an applicable privilege or evidentiary protection; 22 ii. the disclosure of the Protected Documents was not inadvertent; 23 iii. the Producing Party did not take reasonable steps to prevent the 24 disclosure of the Protected Documents; or 25 iv. the Producing Party failed to take reasonable or timely steps to rectify 26 the error. 27 g. Either party may submit Protected Documents to the Court under seal for a 28 determination of the claim of privilege or other protection. The Producing Party shall preserve the 1 Protected Documents until such claim is resolved. The Receiving Party may not use the Protected 2 Documents for any purpose absent this Court’s order. 3 h. Upon a determination by the Court that the Protected Documents are protected 4 by the applicable privilege or evidentiary protection, and if the Protected Documents have been 5 sequestered rather than returned or destroyed by the Receiving Party, the Protected Documents shall 6 be returned or destroyed within 10 (ten) days of the Court’s order. The Court may also order the 7 identification by the Receiving Party of Protected Documents by search terms or other means. 8 i. Nothing contained herein is intended to, or shall serve to limit a Party’s right to 9 conduct a review of documents, data (including electronically stored information) and other 10 information, including without limitation, metadata, for relevance, responsiveness and/or the 11 segregation of privileged and/or protected information before such information is produced to another 12 Party. 13 13. MISCELLANEOUS 14 a. Right to Further Relief. Nothing in this Order abridges the right of any person 15 to seek its modification by the Court in the future or the Court’s right to modify this Order. 16 b. Right to Assert Other Objections. By agreeing to the entry of this Order, no 17 Party waives any right it otherwise would have to object to disclosing or producing any information 18 or item on any ground not addressed in this Order. Similarly, by agreeing to this Protective Order, no 19 Party waives any right to object on any ground to the use in evidence of any of the material covered 20 by this Order. 21 c. Once executed by the Parties, the Protective Order shall be treated by the Parties 22 as an Order of Court until it is formally approved by the Court. This Protective Order shall also apply 23 to additional parties, if any, that join this action unless otherwise specified in writing by the parties 24 and/or the Court. 25 d. This Protective Order supersedes any other protective orders that were entered 26 into prior to the actions being coordinated. 27 28 1 Dated: October 18, 2019 CAPSTONE LAW APC 2 By: /s/ Bevin Allen Pike 3 Bevin Allen Pike Orlando Villalba 4 Attorneys for Plaintiff PAUL CLARK 5 6 Dated: October 18, 2019 LITTLER MENDELSON, P.C. 7 By: /s/ Gregory G. Iskander 8 GREGORY G. ISKANDER JAMES P. VAN 9 Attorneys for Defendants QG PRINTING II, LLC and 10 QUAD/GRAPHICS, INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ORDER 2 Good cause appearing therefor, the Court hereby APPROVES the Parties’ Stipulated 3 || Protective Order and Clawback Order (“Protective Order”) and HEREBY ORDERS that the above 4 || Protective Order is entered and approved by the Court for use in the above-captioned case. 5 6 IT IS SO ORDERED. 7| Dated: _ October 22, 2019 [spe ey —— g UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21. 1 2 EXHIBIT A 3 AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 4 5 I declare as follows: 6 1. My name is _______________________________________________________. 7 8 I live at ___________________________________________________________________. 9 I am employed as _____________________________________.(state position) by 10 ___________________________________________________________________________. (state 11 name and address of employer) 12 2. I am aware that the parties have stipulated to an Order limiting disclosure and use of 13 the confidential information and documents produced by the parties in the instant action entitled 14 “Clark v. QG Printing II, LLC et al., 1:18-CV-00899-AWI-EPG” pending before the United States District Court, Eastern District of California, A copy of the Order has been given to me. 15 3. I promise that documents and information designated as “Confidential” or “Highly 16 Confidential – Attorneys’ Eyes Only” under the Order will be used by me only in testifying and/or assisting counsel in preparing for and participating in the above-referenced litigation and not for any 17 business, personal or other purposes whatsoever. 18 I declare under penalty of perjury that the foregoing is true and correct. 19 20 Date: ___________________ 21 ______________________________ 22 (signature) 23 24 25 4827-4696-7978.1 050407.1152 26 27 28