Knupp v. Amazon.com Services, LLC ( 2023 )

1 M. Ray Hartman III, Bar No. 211205 RHartman@perkinscoie.com 2 Ross E. Bautista, Bar No. 312319 RBautista@perkinscoie.com 3 PERKINS COIE LLP 11452 El Camino Real, Ste 300 4 San Diego, California 92130-2080 Telephone: +1.858.720.5700 5 Facsimile: +1.858.720.5799 6 Attorneys for Defendant AMAZON.COM SERVICES LLC 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION 10 JOANNE KNUPP, individual, and as Case No. 1:23-CV-01112-ADA-BAM 11 plaintiff’s mother and guardian on behalf of 12 minor child, L.K. STIPULATED PROTECTIVE ORDER 13 Plaintiffs, v. Complaint Filed: July 25, 2023 14 Amazon.com Services LLC 15 (“AMAZON”), is a Delaware limited liability company; and DOES 1-50, 16 inclusive. 17 Defendants. 18 19 1. GENERALLY 20 A. PURPOSES AND LIMITATIONS 21 Discovery in this action is likely to involve production of confidential, proprietary, or 22 private information for which special protection from public disclosure and from use for any 23 purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby 24 stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties 25 acknowledge that this Order does not confer blanket protections on all disclosures or responses to 26 discovery and that the protection it affords from public disclosure and use extends only to the 27 limited information or items that are entitled to confidential treatment under the applicable legal 1 B. GOOD CAUSE STATEMENT 2 This action is likely to involve confidential and proprietary materials and information 3 including, confidential personal, medical, employment, and financial information; confidential or 4 competitively sensitive business or financial information; information regarding confidential 5 business practices or other confidential research, development, or commercial information 6 (including information implicating privacy rights of third parties); or information otherwise 7 generally unavailable to the public or which may be privileged or otherwise protected from 8 disclosure under state or federal statutes, court rules, case decisions, or common law. 9 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes 10 over confidentiality of discovery materials, to adequately protect information the parties are 11 entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of 12 such material in preparation for and in the conduct of trial, to address their handling at the end of 13 the litigation, and serve the ends of justice, a protective order for such information is justified in 14 this matter. It is the intent of the parties that information will not be designated as confidential for 15 tactical reasons and that nothing be so designated without a good faith belief that it has been 16 maintained in a confidential, non-public manner, and there is good cause why it should not be 17 part of the public record of this case. 18 2. DEFINITIONS 19 2.1 Action: This federal lawsuit entitled Knupp v. Amazon.com Services LLC, et al., 20 Case No.: 1:23-cv-01112-ADA-BAM. 21 2.2 Challenging Party: A Party or Non-Party that challenges the designation of 22 information or items under this Order. 23 2.3 “CONFIDENTIAL” Information or Items: Information (regardless of how it is 24 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 25 of Civil Procedure 26(c), and as specified above in the Good Cause Statement. 26 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support 27 staff). 1 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2 2.6 Disclosure or Discovery Material: All items or information, regardless of the 3 medium or manner in which it is generated, stored, or maintained (including, among other things, 4 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 5 responses to discovery in this matter. 6 2.7 Expert: A person with specialized knowledge or experience in a matter pertinent to 7 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 8 consultant in this Action. 9 2.8 House Counsel: Attorneys who are employees of a party to this Action. House 10 Counsel does not include Outside Counsel of Record or any other outside counsel. 11 2.9 Non-Party: Any natural person, partnership, corporation, association, or other legal 12 entity not named as a Party to this action. 13 2.10 Outside Counsel of Record: Attorneys who are not employees of a party to this 14 Action but are retained to represent or advise a party to this Action and have appeared in this 15 Action on behalf of that party or are affiliated with a law firm that has appeared on behalf of that 16 party and includes support staff. 17 2.11 Party: Any party to this Action, including all of its officers, directors, employees, 18 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 19 2.12 Producing Party: A Party or Non-Party that produces Disclosure or 20 Discovery Material in this Action. 21 2.13 Professional Vendors: Persons or entities that provide litigation support services 22 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 23 organizing, storing, or retrieving data in any form or medium) and their employees and 24 subcontractors. 25 2.14 Protected Material: Any Disclosure or Discovery Material that is designated as 26 “CONFIDENTIAL.” 27 2.15 Receiving Party: A Party that receives Disclosure or Discovery Material from a 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only Protected Material 3 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 4 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 5 conversations, or presentations by Parties or their Counsel that might reveal Protected Material, 6 other than during a court hearing or at trial. 7 Any use of Protected Material at trial shall be governed by the orders of the trial judge. 8 This Order does not govern the use of Protected Material at trial. 9 4. DURATION 10 Even after final disposition of this litigation, the confidentiality obligations imposed by 11 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 12 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 13 claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after 14 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 15 Action, including the time limits for filing any motions or applications for extension of time 16 pursuant to applicable law. 17 5. DESIGNATING PROTECTED MATERIAL 18 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 19 or Non-Party that designates information or items for protection under this Order must take care 20 to limit any such designation to specific material that qualifies under the appropriate standards. 21 The Designating Party must designate for protection only those parts of material, documents, 22 items or oral or written communications that qualify so that other portions of the material, 23 documents, items, or communications for which protection is not warranted are not swept 24 unjustifiably within the ambit of this Order. 25 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 26 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 27 unnecessarily encumber the case development process or to impose unnecessary expenses and 1 Designating Party’s attention that information or items that it designated for protection do not 2 qualify for protection, that Designating Party must promptly notify all other Parties that it is 3 withdrawing the inapplicable designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order, 5 or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for 6 protection under this Order must be clearly so designated before the material is disclosed or 7 produced. 8 Designation in conformity with this Order requires: 9 (a) for information in documentary form (e.g., paper or electronic documents, but 10 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 11 Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL 12 legend”), to each page that contains protected material. If only a portion of the material on a page 13 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 14 (e.g., by making appropriate markings in the margins). 15 A Party or Non-Party that makes original documents available for inspection need not 16 designate them for protection until after the inspecting Party has indicated which documents it 17 would like copied and produced. During the inspection and before the designation, all of the 18 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 19 Party has identified the documents it wants copied and produced, the Producing Party must 20 determine which documents, or portions thereof, qualify for protection under this Order. Then, 21 before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL 22 legend” to each page that contains Protected Material. If only a portion of the material on a page 23 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 24 (e.g., by making appropriate markings in the margins). 25 (b) for testimony given in depositions, within 30 days after receiving a deposition 26 transcript, a Party may inform the other Parties if the transcript or portions of it are designated as 27 “CONFIDENTIAL.” All persons and Parties in possession of a copy of a designated deposition 1 (c) for information produced in some form other than documentary and for any other 2 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 3 or containers in which the information is stored the legend “CONFIDENTIAL.” If only a portion 4 or portions of the information warrants protection, the Producing Party, to the extent practicable, 5 shall identify the protected portion(s). 6 (d) If a document containing Protected Material is produced in native format, the file 7 name shall contain the term “CONFIDENTIAL” or otherwise clearly indicate that it contains 8 information subject to this Protective Order. 9 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 10 designate qualified information or items does not, standing alone, waive the Designating Party’s 11 right to secure protection under this Order for such material. Upon timely correction of a 12 designation, the Receiving Party must make reasonable efforts to assure that the material is 13 treated in accordance with the provisions of this Order. 14 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 15 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 16 confidentiality at any time that is consistent with the Court’s Scheduling Order and the Federal 17 Rules of Civil Procedure. 18 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 19 process under Local Rule 251 et seq. 20 6.3 Joint Statement. Any challenge submitted to the Court shall be via a Joint 21 Statement re Discovery Disagreement under to Local Rule 251(c). 22 6.4 The burden of persuasion in any such challenge proceeding shall be on the 23 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 24 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 25 to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality 26 designation, all parties shall continue to afford the material in question the level of protection to 27 which it is entitled under the Producing Party’s designation until the Court rules on the challenge. 1 7. ACCESS TO AND USE OF PROTECTED MATERIAL 2 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 3 produced by another Party or by a Non-Party in connection with this Action only for prosecuting, 4 defending, or attempting to settle this Action. Such Protected Material may be disclosed only to 5 the categories of persons and under the conditions described in this Order. When the Action has 6 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 7 DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 8 location and in a secure manner that ensures that access is limited to the persons authorized under 9 this Order. 10 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 11 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 12 information or item designated “CONFIDENTIAL” only to: 13 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees 14 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 15 for this Action; 16 (b) the officers, directors, and employees (including House Counsel) of the Receiving 17 Party to whom disclosure is reasonably necessary for this Action; 18 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 19 reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement 20 to Be Bound” (Exhibit A); 21 (d) the court and its personnel; 22 (e) court reporters and their staff; 23 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom 24 disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment 25 and Agreement to Be Bound” (Exhibit A); 26 (g) the author or recipient of a document containing the information or a custodian or 27 other person who otherwise possessed or knew the information; 1 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 2 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 3 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 4 bound by the court reporter and may not be disclosed to anyone except as permitted under this 5 Stipulated Protective Order; and 6 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed 7 upon by any of the parties engaged in settlement discussions. 8 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED TO BE PRODUCED 9 IN OTHER LITIGATION 10 If a Party is served with a subpoena or a court order issued in other litigation that compels 11 disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that 12 Party must: 13 (a) promptly notify in writing the Designating Party. Such notification shall include a 14 copy of the subpoena or court order; 15 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 16 other litigation that some or all of the material covered by the subpoena or order is subject to this 17 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 18 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 19 Designating Party whose Protected Material may be affected. If the Designating Party timely 20 seeks a protective order, the Party served with the subpoena or court order shall not produce any 21 information designated in this action as “CONFIDENTIAL” before a determination by the court 22 from which the subpoena or order issued, unless the Party has obtained the Designating Party’s 23 permission or unless otherwise required by the law or court order. The Designating Party shall 24 bear the burden and expense of seeking protection of its confidential material and nothing in these 25 provisions should be construed as authorizing or encouraging a Receiving Party in this Action to 26 disobey a lawful directive from another court. 27 1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 2 THIS LITIGATION 3 The terms of this Order are applicable to information produced by a Non-Party in this 4 Action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 5 connection with this litigation is protected by the remedies and relief provided by this Order. 6 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 7 additional protections. 8 In the event that a Party is required, by a valid discovery request, to produce a Non- 9 Party’s confidential information in its possession, and the Party is subject to an agreement with 10 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 11 (a) promptly notify in writing the Requesting Party and the Non-Party that some or all of 12 the information requested is subject to a confidentiality agreement with a Non-Party; 13 (b) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 14 Action, the relevant discovery request(s), and a reasonably specific description of the information 15 requested; and 16 (c) make the information requested available for inspection by the Non-Party, if requested. 17 If the Non-Party fails to seek a protective order from this court within 21 days of receiving 18 the notice and accompanying information, the Receiving Party may produce the Non-Party’s 19 confidential information responsive to the discovery request. If the Non-Party timely seeks a 20 protective order, the Receiving Party shall not produce any information in its possession or 21 control that is subject to the confidentiality agreement with the Non-Party before a determination 22 by the court unless otherwise required by the law or court order. Absent a court order to the 23 contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its 24 Protected Material. 25 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 26 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 27 Material to any person or in any circumstance not authorized under this Stipulated Protective 1 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 2 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 3 made of all the terms of this Order, and (d) request such person or persons to execute the 4 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 5 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 6 PROTECTED MATERIAL 7 When a Producing Party gives notice to Receiving Parties that certain inadvertently 8 produced material is subject to a claim of privilege or other protection, the obligations of the 9 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 10 provision is not intended to modify whatever procedure may be established in an e-discovery 11 order that provides for production without prior privilege review. Pursuant to Federal Rule of 12 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 13 communication or information covered by the attorney-client privilege or work product 14 protection, the parties may incorporate their agreement in the stipulated protective order 15 submitted to the court. 16 12. MISCELLANEOUS 17 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 18 seek its modification by the Court in the future. 19 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 20 Order, no Party waives any right it otherwise would have to object to disclosing or producing any 21 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 22 Party waives any right to object on any ground to use in evidence of any of the material covered 23 by this Protective Order. 24 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 25 Material must comply with Local Civil Rule 141. Protected Material may only be filed under seal 26 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a 27 Party’s request to file Protected Material under seal is denied by the court, then the Receiving 1 13. FINAL DISPOSITION 2 Within 60 days after final disposition of this Action, as defined in paragraph 4, each 3 Receiving Party must return all Protected Material to the Producing Party or destroy such 4 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 5 compilations, summaries, and any other format reproducing or capturing any of the Protected 6 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 7 submit a written certification to the Producing Party (and, if not the same person or entity, to the 8 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 9 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 10 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 11 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 12 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 13 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 14 product, and consultant and expert work product, even if such materials contain Protected 15 Material. Any such archival copies that contain or constitute Protected Material remain subject to 16 this Protective Order as set forth in Section 4 (DURATION). 17 14. VIOLATION 18 Any intentional violation of this Order that is not promptly remedied may be punished by 19 appropriate measures, including contempt proceedings and/or monetary sanctions. 20 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 21 22 Dated: December 1, 2023 BUCHE & ASSOCIATES, P.C. 23 24 By:/s/ Byron Ma (as authorized on 11/29/2023) John K. Buche, Bar No. 239477 25 By ron Ma, Bar No. 299706 26 Attorneys for Plaintiff Joanne Knupp 27 _____________________________________ 1 Dated: December 1, 2023 PERKINS COIE LLP 2 3 By:/s/ Ross E. Bautista M. Ray Hartman III, Bar No. 211205 4 Ross E. Bautista, Bar No. 312319 5 Attorneys for Defendant Amazon.com Services LLC 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, ______________________________________________ [print or type full name], of 5 ________________________ [print or type full address], declare under penalty of perjury that I 6 have read in its entirety and understand the Stipulated Protective Order that was issued by the 7 United States District Court for the Eastern District of California in the case of Knupp v. 8 Amazon.com Services LLC, et al. (Case No. 1:23-cv-01112-ADA-BAM). I agree to comply with 9 and to be bound by all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and punishment in the nature 11 of contempt. I solemnly promise that I will not disclose in any manner any information or item 12 that is subject to this Stipulated Protective Order to any person or entity except in strict 13 compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the 14 United States District Court for the Eastern District of California for enforcing the terms of this 15 Stipulated Protective Order, even if such enforcement proceedings occur after termination of this 16 action. I hereby appoint _______________________________________ [print or type full name] 17 of ____________________________________ [print or type full address and telephone number] 18 as my California agent for service of process in connection with this action or any proceedings 19 related to enforcement of this Stipulated Protective Order. 20 21 Date: ______________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: _______________________________ 24 Signature: __________________________________ 25 26 27 1 CERTIFICATE OF SERVICE 2 3 This is to certify that a true and correct copy of the above and foregoing has been served 4 upon all counsel of record, via the Court’s CM/ECF system and email, on December 1, 2023, as 5 follows: 6 John K. Buche, Esq. Attorneys for Plaintiffs Byron Ma, Esq. 7 BUCHE & ASSOCIATES, P.C. 875 Prospect St., Suite 305 8 La Jolla, CA 92037 9 Tele: (858) 459-9111 Email: jbuche@buchelaw.com 10 bma@buchelaw.com 11 By:/s/ Ross E. Bautista 12 Ross E. Bautista, Bar No. 312319 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 ORDER 2 Having considered the Stipulated Protective Order filed on November 30, 2023, and 3 finding good cause, the Court adopts the stipulated protective order. (Doc. 17.) 4 The parties are advised that pursuant to the Local Rules of the United States District 5 Court, Eastern District of California, any documents subject to the protective order to be filed 6 under seal must be accompanied by a written request which complies with Local Rule 141 prior 7 to sealing. The party making a request to file documents under seal shall be required to show 8 good cause for documents attached to a non-dispositive motion or compelling reasons for 9 documents attached to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 10 677-78 (9th Cir. 2009). Within five (5) days of any approved document filed under seal, the party 11 shall file a redacted copy of the sealed document. The redactions shall be narrowly tailored to 12 protect only the information that is confidential or was deemed confidential. 13 Additionally, the parties shall consider resolving any dispute arising under the stipulated 14 protective order according to the Court’s informal discovery dispute procedure. 15 16 IT IS SO ORDERED. 17 Dated: December 1, 2023 /s/ Barbara A. McAuliffe _ 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27