Smith v. Grundfos Pumps Manufacturing Corporation ( 2021 )

1 BBeevviinn .PAilkleen@ Pciakpes t(oSnBeNla w22y1e9rs3.6co) m 2 Daniel Jonathan (SBN 262209) Daniel.Jonathan@capstonelawyers.com 3 Trisha K. Monesi (SBN 303512) Trisha.Monesi@capstonelawyers.com Capstone Law APC 4 1875 Century Park East, Suite 1000 Los Angeles, California 90067 5 Telephone: (310) 556-4811 Facsímile: (310) 943-0396 6 Attorneys for Plaintiff Ryan Smith 7 Michael J. Nader, SBN 200425 8 michael.nader@ogletreedeakins.com Paul M. Smith, SBN 306644 paul.smith@ogletree.com 9 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 10 500 Capitol Mall, Suite 2500 Sacramento, CA 95814 11 Tel.: 916-840-3150 / Fax: 916-840-3159 Attorneys for Defendants Grundfos Pumps 12 Manufacturing Corp.; Grundfos Americas Corp.; Grundfos CBS, Inc.; Grundfos Pumps Corp.; and Grundfos 13 US Holding Corp. 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 FRESNO DIVISION 17 RYAN SMITH, individually, and on behalf Case No. 1:21-cv-00376-AWI-EPG of other members of the general public 18 similarly situated, STIPULATED PROTECTIVE ORDER 19 Plaintiff, (ECF No. 12) 20 v. Trial Date: TBD 21 GRUNDFOS PUMPS MANUFACTURING CORPORATION, a 22 California corporation; GRUNDFOS AMERICAS CORPORATION, a California 23 corporation; GRUNDFOS CBS, INC. , a Delaware corporation; GRUNDFOS PUMPS 24 CORPORATION, a California corporation; GRUNDFOS US HOLDING 25 CORPORATION, a California corporation; and DOES 1 through 10, inclusive, 26 Defendants. 27 RECITALS & GOOD CAUSE STATEMENT 28 1 WHEREAS, Plaintiff RYAN SMITH (“Plaintiff”) and Defendants GRUNDFOS PUMPS 2 MANUFACTURING CORPORATION, GRUNDFOS AMERICAS CORPORATION, GRUNDFOS 3 CBS, INC., GRUNDFOS PUMPS CORPORATION, and GRUNDFOS US HOLDING 4 CORPORATION (collectively “Defendants”) (all referred to as the “Parties”) in the above-captioned 5 action (the “Action”) have agreed that, pursuant to the guidance provided by the Court in its initial 6 denial of preliminary approval of the Parties’ settlement of this Action, Defendants will provide the 7 names and contact information of a sample of former employees in the putative class, which involves 8 the disclosure of confidential and private contact information of former employees (“Contact 9 Information”); 10 WHEREAS, such Contact Information is protected from public disclosure under state 11 or federal statutes, court rules, case decisions, or common law; 12 WHEREAS, the unauthorized public disclosure of such Contact Information may result 13 in significant and unwarranted harm to the Parties and/or third parties; 14 WHEREAS, the Parties have agreed to produce such Contact Information only on the 15 agreement that such information will be disclosed only as provided in this Stipulated Protective Order 16 (the “Order” or “Protective Order”) or as otherwise ordered by the Court; 17 WHEREAS, the Parties further wish to ensure that the Contact Information is protected 18 from disclosure, kept confidential, and used only for purposes appropriate to this litigation, as well as 19 to require appropriate ground rules for such contact; 20 WHEREAS, the Parties therefore agree that to ensure that the Contact Information is 21 adequately protected, the Parties choose to follow the notice process sanctioned by Federal District 22 Court, Central District of California in York v. Starbucks Corp., 2009 U.S. Dist. LEXIS 92274, *4-5, 23 2009 WL 3177605 (C.D. Cal. June 30, 2009); 24 WHEREAS, because the purpose of this Order is to protect the Contact Information, 25 the Parties agree they are bound as follows from and after the date their counsel have signed it, even 26 if such execution occurs prior to Court approval. 27 THEREFORE, the Parties seek the entry of the Order governing the disclosure of the 28 Contact Information to be designated as “Highly Confidential – Attorneys’ Eyes Only” on the terms 1 set forth below, as well as an Order, governing the return of inadvertently produced Contact 2 Information and affording the Contact Information the protections on the terms set forth below. 3 THE PARTIES AGREE AS FOLLOWS: 4 1. DEFINITIONS 5 a. “Contact Information”: The names and personal contact information of a 6 sample of former employees of Defendants who are also putative class members in this Action. 7 Further, Contact Information is information for which disclosure is likely to have the effect of causing 8 harm to either Party, or person from whom the information was obtained, or to the Parties’ or third- 9 parties’ privacy. Contact Information also includes private information pertaining to Defendants’ 10 employees, for which the Parties or any third party have a duty to maintain confidentially. 11 b. Counsel (without qualifier): Outside Counsel and House Counsel (as well as 12 their support staffs). 13 c. Designating Party: a Party that designates information or items that it produces 14 in disclosures or in responses to discovery as “Confidential” or “Highly Confidential – Attorneys’ 15 Eyes Only.” 16 d. Disclosures or Discovery Material: all Contact Information produced or 17 generated in disclosures or responses to another party in this matter. 18 e. Expert: a person with specialized knowledge or experience in a matter pertinent 19 to the litigation who has been retained by a Party or its Counsel to serve as an expert witness or as a 20 consultant in this action and who is not a past or a current employee of a Party or of a competitor of a 21 Party and who, at the time of retention, is not anticipated to become an employee of a Party or a 22 competitor of a Party. This definition includes a professional jury or trial consultant retained in 23 connection with this litigation. 24 f. “Highly Confidential – Attorneys’ Eyes Only” Information or Items: extremely 25 sensitive “Confidential” Information or Items whose disclosure to another Party or nonparty would 26 create a substantial risk of serious harm that could not be avoided by less restrictive means, especially 27 the Contact Information defined herein. 28 g. House Counsel: attorneys who are employees of a Party. 1 h. Outside Counsel: attorneys who are not employees of a Party but who are 2 retained to represent or advise a Party in this action. 3 i. Party: any party to this action, including all of its officers, directors, employees, 4 agents, consultants, retained experts, House and Outside counsel (and their support staff). 5 j. Producing Party: a Party that produces Disclosure or Discovery Material in this 6 action. 7 k. Professional Vendors: persons or entities that provide litigation support services 8 (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, 9 storing, retrieving data in any form or medium; etc.) and their employees and subcontractors. 10 l. Protected Material: Disclosure or Discovery Material that is designated as 11 “Highly Confidential – Attorneys’ Eyes Only” pursuant to this Order. 12 m. Receiving Party: a Party that receives Disclosure or Discovery Material from a 13 Producing Party in this action. 14 2. SCOPE 15 The protections conferred by this Order cover not only Protected Material (as defined 16 above), but also any information copied or extracted therefrom, as well as all copies, excerpts, 17 summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or 18 Counsel to or in Court or in other settings that might reveal Protected Material. 19 3. DURATION 20 Even after the termination of this litigation, the confidentiality obligations imposed by 21 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court order 22 otherwise directs. 23 4. DESIGNATING PROTECTED MATERIAL 24 a. Exercise of Restraint and Care in Designating Material for Protection. Each 25 Party or non-party that designates information or items for protection under this Order must take care 26 to limit any such designation to specific material that qualifies under appropriate standards. A 27 Designating Party must take care to designate for protection only those parts of material, documents, 28 items, or oral or written communications that qualify – so that other portions of the material 1 documents, items, or communications for which protection is not warranted are not swept unjustifiably 2 within the ambit of this Order. 3 If it comes to a Party’s attention that information or items that it designated for 4 protection do not qualify for protection at all, or do not qualify for the level of protection initially 5 asserted, that Party must promptly notify the other Party that it is withdrawing the mistaken 6 designation. 7 b. Manner and Timing of Designations. Except as otherwise provided in this Order 8 (see, e.g., second paragraph of Paragraph 4(b)(i) below), or as otherwise agreed or ordered, material 9 that qualifies for protection under this Order must be clearly so designated before the material is 10 disclosed or produced. 11 Designation in conformity with this Order requires: 12 i. For information in documentary form (apart from transcripts of 13 depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 14 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on each page 15 that contains protected material. If only a portion or portions of the material on a page qualifies for 16 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 17 appropriate markings in the margins) and must specify, for each portion, the level of protection being 18 asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 19 ONLY”). 20 In the event that a party makes documents available for inspection, rather than 21 delivering copies to another party, no marking need be made in advance of the initial inspection. For 22 purposes of the initial inspection, all documents produced shall be considered as marked “HIGHLY 23 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Thereafter, upon the inspecting party’s selection 24 of documents for copying, the Producing Party may mark the copies “CONFIDENTIAL” or 25 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” pursuant to this Order. 26 For testimony given in deposition or in other pretrial or trial proceedings, that the 27 Party offering or sponsoring the testimony identify on the record, before the close of the deposition, 28 hearing, or other proceeding, all protected testimony, and further specify any portions of the testimony 1 that qualify as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” When it is impractical 2 to identify separately each portion of testimony that is entitled to protection, and when it appears that 3 substantial portions of the testimony may qualify for protection, the Party that sponsors, offers, or 4 gives the testimony may notify the other Party within twenty (20) days after the transcript is made 5 available to identify the specific portions of the testimony as to which protection is sought and to 6 specify the level of protection being asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 7 ATTORNEYS’ EYES ONLY”). 8 Transcript pages containing Protected Material must be separately bound by the court 9 reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” or “HIGHLY 10 CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as instructed by the Party offering or sponsoring 11 the witness or presenting the testimony. 12 ii. For information produced in some form other than documentary, 13 and for any other tangible items, that the Producing Party affix in a prominent place on the exterior 14 of the disk, container or containers in which the information or item is stored the legend 15 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Unless 16 otherwise stated in writing by the Designating Party, all documents and information contained therein 17 must be treated according to the designation specified. If only portions of the information or item 18 warrant protection, the Producing Party, to the extent practicable, shall identify the protected portions, 19 specifying whether they qualify as “CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL – 20 ATTORNEYS’ EYES ONLY.” 21 c. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 22 designate qualified information or items as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 23 ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating Party’s right to secure 24 protection under this Order for such material. If material is appropriately designated as 25 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” after the 26 material was initially produced, the Receiving Party, on timely notification of the designation, must 27 make reasonable efforts to assure that the material is treated in accordance with the provisions of this 28 Order from that point forward. The Designating Party may seek relief to address any situation where 1 the Receiving Party refuses, either directly or indirectly, to accord proper treatment of materials after 2 notice of an inadvertent failure to designate by the Designating Party. 3 d. Use of Confidential and Highly Confidential-Attorneys’ Eyes Only Material. 4 Documents and other material designated “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL – 5 ATTORNEYS’ EYES ONLY” shall be used solely and exclusively for preparing for and prosecuting 6 this case, including any claims on behalf of the named plaintiff(s) and any putative class members 7 pending the completion of the judicial process, including appeal. “CONFIDENTIAL” and “HIGHLY 8 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Documents and other material cannot be used for 9 any other purpose in any other matter or proceeding for any reason whatsoever. 10 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS 11 a. Timing of Challenges. If the Receiving Party wishes to challenge the 12 Confidentiality Designation of a particular document or information, it must do so by letter or email 13 to Counsel for the Designating Party within fourteen (14) days of receipt of such document or 14 information, or within fourteen (14) days of discovery of material information giving rise to such a 15 challenge. Failure to challenge a confidentiality designation within this time frame shall operate as a 16 waiver to future challenges. Until agreement is reached between Parties as to a Confidentiality 17 Designation or the Court rules on a judicial challenge to a Confidentiality Designation pursuant to the 18 procedures set forth in this paragraph, the document shall be treated as “CONFIDENTIAL” or 19 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to this Agreement. 20 b. Meet and Confer. A Party that elects to initiate a challenge to a Designating 21 Party’s confidentiality designation must do so in good faith and must confer directly (in voice to voice 22 dialogue or via email or letter) with Counsel for the Designating Party. In conferring, the challenging 23 Party must explain the basis for its belief that the confidentiality designation was not proper and must 24 give the Designating Party an opportunity to review the designated material, to reconsider the 25 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 26 designation. A challenging Party may proceed to the next stage of the challenge process only if it has 27 engaged in this meet and confer process first. 28 1 c. Judicial Intervention. A challenging Party that elects to press a challenge to a 2 confidentiality designation after considering the justification offered by the Designating Party may, 3 within twenty-one (21) days after the meet and confer process ends, move the Court for an Order 4 determining whether the item has been properly designated as confidential, identifying the challenged 5 material and setting forth in detail the basis for the challenge. Each such motion must be accompanied 6 by a competent declaration that affirms that (1) the movant has complied with the meet and confer 7 requirements imposed in the preceding paragraph; (2) the material has been maintained as 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” while the 9 dispute is being resolved; and (3) sets forth with specificity the justification for the confidentiality 10 designation that was given by the Designating Party during the meet and confer process. 11 The burden of persuasion in any such challenge proceeding shall be on the Designating 12 Party. Until the court rules on the challenge, all Parties shall continue to afford the material in question 13 the level of protection to which it is entitled under the Producing Party’s designation. 14 6. ACCESS TO AND USE OF PROTECTED MATERIAL 15 a. Basic Principles. A Receiving Party may use Protected Material that is 16 disclosed or produced by another Party in connection with this case only for prosecuting, defending, 17 or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories 18 of persons and under the conditions described in this Order. When the litigation has been terminated, 19 a Receiving Party must comply with the provisions of Paragraph 10 below (FINAL DISPOSITION). 20 Protected Material must be stored and maintained by a Receiving Party at a location 21 and in a secure manner that ensures that access is limited to the persons authorized under this Order. 22 b. Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 23 ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose 24 any information or item designated CONFIDENTIAL only to: 25 /// 26 /// 27 28 1 i. the Receiving Party’s Outside Counsel of record in this action, as well 2 as employees of said Outside Counsel engaged in the representation of the Parties in the above- 3 captioned action; 4 ii. the Parties (if an entity, this includes present and former officers, 5 directors, agents and employees (including House Counsel)); 6 iii. Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be Bound 8 by Protective Order” (Exhibit A); 9 iv. the Court and its personnel, subject to the procedures of Paragraph 9 10 below; 11 v. court reporters, third party neutrals, their staff, and professional vendors 12 retained for purposes of this litigation; 13 vi. potential, anticipated or actual fact witnesses and their counsel to whom 14 disclosure is reasonably necessary and who have signed the “Agreement to Be Bound by Protective 15 Order” (Exhibit A); and 16 vii. the author of the document or the original source of the information. 17 c. Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 18 Information or Items. Unless otherwise ordered by the Court or permitted in writing by the Designating 19 Party, a Receiving Party may disclose any information or item designated “HIGHLY 20 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 21 i. the Receiving Party’s Outside Counsel of record in this action, as well 22 as employees of said Outside Counsel engaged in the representation of the Parties in the above- 23 captioned action; 24 ii. House Counsel of the Receiving Party; 25 iii. Experts (as defined in this Order) of the Receiving Party (1) to whom 26 disclosure is reasonably necessary for this litigation; and (2) who have signed the “Agreement to Be 27 Bound by Protective Order” (Exhibit A); 28 1 iv. the Court and its personnel, subject to the procedures of Paragraph 9 2 below; 3 v. court reporters, their staff, third party neutrals, and professional vendors 4 retained for purposes of this litigation; and 5 vi. the author of the document or the original source of the information. 6 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 7 OTHER LITIGATION 8 If a Receiving Party is served with a subpoena or an order issued in other litigation that 9 would compel disclosure of any information or items designated in this action as “CONFIDENTIAL” 10 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the Receiving Party must so notify 11 the Designating Party, in writing (by email or fax, if possible) immediately and in no event more than 12 three (3) court days after receiving the subpoena or order. Such notification must include a copy of the 13 subpoena or court order. The Receiving Party also must immediately inform in writing the Party who 14 caused the subpoena or order to issue in the other litigation that some or all the material covered by 15 the subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must 16 deliver a copy of this Protective Order promptly to the Party in the other action that caused the 17 subpoena or order to issue. Under no circumstances shall the Receiving Party produce 18 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” absent a 19 specific Order by the Court after an appropriate Motion to Quash and/or Compel has been filed. 20 The purpose of imposing these duties is to alert the interested parties to the existence 21 of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect 22 its confidentiality interests in the court from which the subpoena or order issued. The Designating 23 Party shall bear the burdens and the expenses of seeking protection in that court of its confidential 24 material – and nothing in these provisions should be construed as authorizing or encouraging a 25 Receiving Party in this action to disobey a lawful directive from another court. 26 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 27 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 28 Material to any person or in any circumstance not authorized under this Protective Order, the 1 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 2 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person 3 or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request 4 such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached 5 hereto as Exhibit A. 6 9. FILING CONFIDENTIAL OR HIGHLY CONFIDENTIAL MATERIAL 7 Where any Confidential or Highly Confidential – Attorneys’ Eyes Only information or 8 materials are included in any motion or other proceeding governed by California Rules of Court, 9 Rules 2.550 and 2.551 or Federal Rules of Civil Procedure 5.2 and 26(c), the party shall follow 10 those rules. With respect to discovery motions or other proceedings not governed by California 11 Rules of Court, Rules 2.550 and 2.551 or Federal Rules of Civil Procedure 5.2 and 26(c), the following 12 shall apply: If Confidential or Highly Confidential – Attorneys’ Eyes Only information or material 13 are submitted to or otherwise disclosed to the Court in connection with discovery motions and 14 proceedings, the same shall be separately filed under seal with the clerk of the Court in an envelope 15 marked: “CONFIDENTIAL – FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER 16 AND WITHOUT ANY FURTHER SEALING ORDER REQUIRED.” 17 10. FINAL DISPOSITION 18 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) 19 days after the final termination of this action (including any appeals), each Receiving Party must either: 20 (1) return all Protected Material to the Producing Party; or (2) destroy all Protected Material, including 21 electronic materials. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 22 compilations, summaries or any other form of reproducing or capturing of any of the Protected 23 Material. Upon request by the Designating Party, the Receiving Party must submit a written 24 certification to the Designating Party by the sixty (60) day deadline that identifies (by category, where 25 appropriate) all the Protected Material that was returned or destroyed and that affirms that the 26 Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of 27 reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are 28 entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, 1 correspondence or attorney work product, even if such materials contain Protected Material. Any such 2 archival copies that contain or constitute Protected Material remain subject to this Protective Order as 3 set forth in Paragraph 3 (DURATION) above. 4 11. YORK V. STARBUCKS AGREEMENT 5 The Parties hereby agree that the Contact Information is protected by the employees’ 6 right to privacy, and it shall be designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 7 ONLY” as defined by Paragraph 1 of this Protective Order before being produced to Plaintiff’s 8 Counsel. 9 In addition, the Parties agree that, at the outset of Plaintiff’s Counsel’s first contact with 10 each current or former employee whose contact information is provided by Defendants through 11 discovery in this litigation, Plaintiff’s Counsel will inform each contacted individual that (a) the 12 decision whether to talk with Plaintiff’s Counsel is voluntary and the individual has the right not to 13 talk with Plaintiff’s Counsel and (b) that, if he or she elects not to talk to Counsel, Counsel will 14 terminate the contact and not contact them again. 15 Plaintiff’s Counsel will also inform each individual that his or her refusal to speak with 16 counsel will not prejudice his or her rights as a putative class member should the Court certify the 17 class. 18 Plaintiff’s Counsel will keep a list of all individuals contacted and all individuals who 19 make it known that they do not want to be contacted and preserve that list for the Court. 20 Plaintiff’s Counsel will attempt to contact putative class members only in a reasonable 21 manner and as necessary to obtain only one declaration from each individual regarding the alleged 22 facts and claims in this Action. Plaintiff’s Counsel agrees to contact class members during times that 23 are not overly intrusive to the personal and professional lives of putative class members. Plaintiff’s 24 Counsel will also cease contact with putative class members once they obtain a declaration from the 25 individual, or the individual notifies Plaintiff’s counsel that they decline to be interviewed or decline 26 to sign a declaration. The Parties hereby agree further that contact information for the putative class 27 shall be used only for purposes of this action and that it shall not be disseminated to anyone not 28 necessary to the prosecution of this action. 1 12. CLAWBACK AGREEMENT 2 The Parties agree to and the Court orders protection of privileged and otherwise 3 protected Documents against claims of waiver (including as against third parties and in other federal 4 and state proceedings) as follows: 5 a. The disclosure or production of Documents by a Producing Party subject to a 6 legally recognized claim of privilege, including without limitation the attorney-client privilege and the 7 work-product doctrine, to a Receiving Party, shall in no way constitute the voluntary disclosure of 8 such Document. 9 b. The inadvertent disclosure or production of any Document in this action shall 10 not result in the waiver of any privilege, evidentiary protection or other protection associated with 11 such Document as to the Receiving Party or any third parties, and shall not result in any waiver, 12 including subject matter waiver, of any kind. 13 c. If, during the course of this litigation, a party determines that any Document 14 produced by another party is or may reasonably be subject to a legally recognizable privilege or 15 evidentiary protection (“Protected Document”): 16 i. the Receiving Party shall: (A) refrain from reading the Protected 17 Document any more closely than is necessary to ascertain that it is privileged or otherwise protected 18 from disclosure; (B) immediately notify the Producing Party in writing that it has discovered 19 Documents believed to be privileged or protected; (C) specifically identify the Protected Documents 20 by Bates number range or hash value, and, (D) within ten (10) days of discovery by the Receiving 21 Party, return, sequester, or destroy all copies of such Protected Documents, along with any notes, 22 summaries, abstracts or compilations of the content thereof. To the extent that a Protected Document 23 has been loaded into a litigation review database under the control of the Receiving Party, the 24 Receiving Party shall have all electronic copies of the Protected Document extracted from the 25 database. Where such Protected Documents cannot be destroyed or separated, they shall not be 26 reviewed, disclosed, or otherwise used by the Receiving Party. Notwithstanding, the Receiving Party 27 is under no obligation to search or review the Producing Party’s Documents to identify potentially 28 privileged or work product Protected Documents. 1 ii. If the Producing Party intends to assert a claim of privilege or other 2 protection over Documents identified by the Receiving Party as Protected Documents, the Producing 3 Party will, within ten (10) days of receiving the Receiving Party’s written notification described above, 4 inform the Receiving Party of such intention in writing and shall provide the Receiving Party with a 5 log for such Protected Documents setting forth the basis for the claim of privilege or other protection. 6 In the event that any portion of a Protected Document does not contain privileged or protected 7 information, the Producing Party shall also provide to the Receiving Party a redacted copy of the 8 document that omits the information that the Producing Party believes is subject to a claim of privilege 9 or other protection. 10 d. If, during the course of this litigation, a party determines it has produced a 11 Protected Document: 12 i. The Producing Party may notify the Receiving Party of such inadvertent 13 production in writing, and demand the return of such documents. Such notice shall be in writing, 14 however, it may be delivered orally on the record at a deposition, promptly followed up in writing. 15 The Producing Party’s written notice will identify the Protected Document inadvertently produced by 16 bates number range or hash value, the privilege or protection claimed, and the basis for the assertion 17 of the privilege and shall provide the Receiving Party with a log for such Protected Documents setting 18 forth the basis for the claim of privilege or other protection. In the event that any portion of the 19 Protected Document does not contain privileged or protected information, the Producing Party shall 20 also provide to the Receiving Party a redacted copy of the Document that omits the information that 21 the Producing Party believes is subject to a claim of privilege or other protection. 22 ii. The Receiving Party must, within ten (10) days of receiving the 23 Producing Party’s written notification described above, return, sequester, or destroy the Protected 24 Document and any copies, along with any notes, summaries, abstracts or compilations of the content 25 thereof. To the extent that a Protected Document has been loaded into a litigation review database 26 under the control of the Receiving Party, the Receiving Party shall have all electronic copies of the 27 Protected Document extracted from the database. 28 1 e. To the extent that the information contained in a Protected Document has 2 already been used in or described in other documents generated or maintained by the Receiving Party 3 prior to the date of receipt of written notice by the Producing Party as set forth in Paragraphs 11(c)(ii) 4 and 11(d)(i), then the Receiving Party shall sequester such documents until the claim has been 5 resolved. If the Receiving Party disclosed the Protected Document before being notified of its 6 inadvertent production, it must take all reasonable steps to retrieve it. 7 f. The Receiving Party’s return, sequestering or destruction of Protected 8 Documents as provided herein will not act as a waiver of the Requesting Party’s right to move for the 9 production of the returned, sequestered or destroyed documents on the grounds that the documents are 10 not, in fact, subject to a viable claim of privilege or protection. However, the Receiving Party is 11 prohibited and estopped from arguing that: 12 i. the disclosure or production of the Protected Documents acts as a waiver 13 of an applicable privilege or evidentiary protection; 14 ii. the disclosure of the Protected Documents was not inadvertent; 15 iii. the Producing Party did not take reasonable steps to prevent the 16 disclosure of the Protected Documents; or 17 iv. the Producing Party failed to take reasonable or timely steps to rectify 18 the error. 19 g. Either party may submit Protected Documents to the Court under seal for a 20 determination of the claim of privilege or other protection. The Producing Party shall preserve the 21 Protected Documents until such claim is resolved. The Receiving Party may not use the Protected 22 Documents for any purpose absent this Court’s order. 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 h. Upon a determination by the Court that the Protected Documents are protected 2 by the applicable privilege or evidentiary protection, and if the Protected Documents have been 3 sequestered rather than returned or destroyed by the Receiving Party, the Protected Documents shall 4 be returned or destroyed within 10 (ten) days of the Court’s order. The Court may also order the 5 identification by the Receiving Party of Protected Documents by search terms or other means. 6 i. Nothing contained herein is intended to, or shall serve to limit a Party’s right to 7 conduct a review of documents, data (including electronically stored information) and other 8 information, including without limitation, metadata, for relevance, responsiveness and/or the 9 segregation of privileged and/or protected information before such information is produced to another 10 Party. 11 13. MISCELLANEOUS 12 a. Right to Further Relief. Nothing in this Order abridges the right of any person 13 to seek its modification by the Court in the future or the Court’s right to modify this Order. 14 b. Right to Assert Other Objections. By agreeing to the entry of this Order, no 15 Party waives any right it otherwise would have to object to disclosing or producing any information 16 or item on any ground not addressed in this Order. Similarly, by agreeing to this Protective Order, no 17 Party waives any right to object on any ground to the use in evidence of any of the material covered 18 by this Order. 19 c. Once executed by the Parties, the Protective Order shall be treated by the Parties 20 as an Order of Court until it is formally approved by the Court. This Protective Order shall also apply 21 to additional parties, if any, that join this action unless otherwise specified in writing by the parties 22 and/or the Court. 23 d. This Protective Order supersedes any other protective orders that were entered 24 into prior to the actions being coordinated. 25 /// 26 /// 27 28 1 Dated: August 5, 2021 CAPSTONE LAW APC 2 By: /s/ Bevin Allen Pike 3 Bevin Allen Pike Daniel Jonathan 4 Trisha Monesi 5 Attorneys for Plaintiff Ryan Smith 6 7 OGLETREE, DEAKINS, NASH, Dated: August 5, 2021 SMOAK & STEWART, P.C.\ 8 9 By: /s/ Michael J. Nader Michael J. Nader, SBN 200425 10 Paul M. Smith, SBN 306644 11 Attorneys for Defendants Grundfos Pumps Manufacturing Corp.; Grundfos 12 Americas Corp.; Grundfos CBS, Inc.; Grundfos Pumps Corp.; and Grundfos 13 US Holding Corp. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 3 I declare as follows: 4 5 1. My name is _______________________________________________________. 6 I live at ___________________________________________________________________. 7 8 I am employed as _____________________________________.(state position) by 9 ___________________________________________________________________________. (state 10 name and address of employer) 11 2. I am aware that the parties have stipulated to an Order limiting disclosure and use of 12 the personal contact information of putative class members in the instant action entitled “Smith v. Grundfos Pumps Manuf. Corp., et al., 1:21-CV-00376-AWI-EPG” pending before the United States 13 District Court, Eastern District of California, A copy of the Order has been given to me. 14 3. I promise that documents and information designated as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” under the Order will be used by me only in testifying and/or 15 assisting counsel in preparing for and participating in the above-referenced litigation and not for any 16 business, personal or other purposes whatsoever. I declare under penalty of perjury that the foregoing is true and correct. 17 18 Date: ___________________ 19 20 ______________________________ (signature) 21 22 23 48025309.1 24 25 26 27 28 1 ORDER 2 The parties’ stipulation defines “Highly Confidential – Attorneys’ Eyes Only” Information or 3 Items to include “extremely sensitive ‘Confidential’ Information or Items whose disclosure to 4 another Party or nonparty would create a substantial risk of serious harm that could not be avoided by less restrictive means, especially the Contact Information defined herein.” This definition 5 includes catchall language that does not comply with Local Rule 141.1(c)(1), which requires a 6 description of the types of information eligible for protection. Accordingly, “Highly Confidential – 7 Attorneys’ Eyes Only” Information or Items shall be limited to Contact Information, as defined in 8 the parties’ stipulation, whose disclosure to another Party or nonparty would create a substantial risk 9 of serious harm that could not be avoided by less restrictive means. 10 Additionally, the parties are advised that pursuant to the Court’s Local Rules, any documents 11 subject to this protective order to be filed under seal must be accompanied by a written request 12 which complies with Local Rule 141 prior to sealing. The party making a request to file documents 13 under seal shall be required to show good cause for documents attached to a non-dispositive motion 14 or compelling reasons for documents attached to a dispositive motion. Pintos v. Pacific Creditors 15 Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). 16 Finally, in order to file a discovery motion, including a motion concerning a dispute arising 17 under this protective order, a party must receive permission from the Court following an informal 18 telephonic discovery dispute conference. In order to schedule such a conference, the parties shall 19 contact Courtroom Deputy Michelle Means Rooney at mrooney@caed.uscourts.gov, with all parties 20 to the dispute copied, advising the Court of the parties’ available dates and times within a one-week 21 period. The Court will set the conference as soon as possible, taking into consideration the urgency 22 of the issue, on a date and time convenient for the involved parties and the Court. Prior to the 23 conference, the parties shall simultaneously file an Informal Discovery Dispute Letter Brief outlining their positions regarding the dispute. Such briefs shall be no longer than three pages single- 24 spaced, and may include up to five pages of exhibits. The parties are also directed to email their 25 briefs to epgorders@caed.uscourts.gov. The Court will provide the date and time the Letter Briefs 26 are due at the time the conference is scheduled. At the time of conference, the parties shall dial 1 27 (888) 251-2909 and enter access code 1024453. The Court will not issue a formal ruling at the 28 1 | dispose of the dispute. If no resolution can be reached without formal motion practice, the Court will 2 || authorize the filing of a formal discovery motion. 3 Subject to the foregoing modifications, the parties’ Stipulated Protective Order (ECF No. 12) 4 || is hereby approved. 5 IT IS SO ORDERED. 6 7| Dated: _ August 9, 2021 □□□ hey 3 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23.