STIPULATED PROTECTIVE ORDER 

Case No. 4:17-00554-YGR 

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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

OAKLAND DIVISION 

IN RE RH, INC. SECURITIES 

LITIGATION, 

 

Case No. 4:17-00554-YGR 

ECF CASE 

STIPULATED PROTECTIVE 

ORDER 

*As Modified by the Court* 
STIPULATED PROTECTIVE ORDER 

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1. PURPOSES AND LIMITATIONS 

Disclosure and discovery activity in this action are likely to involve production of 

confidential, proprietary, or private information for which special protection from public 

disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 

Accordingly, the parties hereby stipulate to and petition the court to enter the following 

Stipulated Protective Order (the “Order”). The parties acknowledge that this Order does not 

confer blanket protections on all disclosures or responses to discovery and that the protection it 

affords from public disclosure and use extends only to the limited information or items that are 

entitled to confidential treatment under the applicable legal principles. The parties further 

acknowledge, as set forth in Section 12.3, below, that this Order does not entitle them to file 

confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 

followed and the standards that will be applied when a party seeks permission from the court to 

file material under seal. 

2. DEFINITIONS 

2.1 Challenging Party: a Party or Non-Party that challenges the designation of 

information or items under this Order. 

2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 

of Civil Procedure 26(c) or that are (i) prohibited from disclosure by statute; (ii) trade secrets; 

(iii) confidential research, development, proprietary, or commercial information, the disclosure 

of which would cause competitive harm; (iv) personal medical information; (v) private 

individual identificatory information such as Social Security numbers, home telephone numbers 

and addresses, tax returns (including attached schedules and forms), W-2s, 1099s, and banking or 

credit information. 

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 

well as their support staff). 

2.4 Designating Party: a Party or Non-Party that designates information or items that 

it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 
STIPULATED PROTECTIVE ORDER 

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2.5 Disclosure or Discovery Material: all items or information, regardless of the 

medium or manner in which it is generated, stored, or maintained (including, among other things, 

testimony, transcripts, and tangible things), that are produced or generated in disclosures or 

responses to discovery in this matter. 

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent 

to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as 

a consultant in this action, as well as the expert witness’s or consultant’s assistants, support staff, 

and agents. 

2.7 House Counsel: attorneys who are employees of a party to this action. House 

Counsel does not include Outside Counsel of Record or any other outside counsel. 

2.8 Non-Party: any natural person, partnership, corporation, association, or other 

legal entity not named as a Party to this action. 

2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 

action but are retained to represent or advise a party to this action and have appeared in this 

action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 

that party. 

2.10 Party: any party to this action, including all of its officers, directors, employees, 

consultants, retained Experts, and Outside Counsel of Record (and their support staffs). 

2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 

Material in this action. 

2.12 Professional Vendors: persons or entities that provide litigation support services 

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 

organizing, storing, or retrieving data in any form or medium) and their employees and 

subcontractors. 

2.13 Protected Material: any Disclosure or Discovery Material that is designated as 

“CONFIDENTIAL.” 

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 

Producing Party. 
STIPULATED PROTECTIVE ORDER 

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3. SCOPE 

The protections conferred by this Stipulation and Order cover not only Protected Material 

(as defined above), but also (1) any information copied or extracted from Protected Material; (2) 

all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 

conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 

However, the protections conferred by this Stipulation and Order do not cover the following 

information: (a) any information that is in the public domain at the time of disclosure to a 

Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 

a result of publication not involving a violation of this Order, including becoming part of the 

public record through trial or otherwise; and (b) any information known to the Receiving Party 

prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 

obtained the information lawfully and under no contractual or legal obligation of confidentiality 

to the Designating Party. Any use of Protected Material at trial shall be governed by a separate 

agreement or order. 

4. DURATION 

Even after final disposition of this litigation, the confidentiality obligations imposed by 

this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 

order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 

claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 

the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 

action, including the time limits for filing any motions or applications for extension of time 

pursuant to applicable law. 

5. DESIGNATING PROTECTED MATERIAL 

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 

or Non-Party that designates information or items for protection under this Order must take care 

to limit any such designation to specific material that qualifies under the appropriate standards. 

The Designating Party must designate for protection only material, documents, items, or oral or 

written communications that qualify – so that other material, documents, items, or 
STIPULATED PROTECTIVE ORDER 

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communications for which protection is not warranted are not swept unjustifiably within the 

ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. If a 

Designating Party designates an entire document as CONFIDENTIAL notwithstanding that only 

parts of the document are CONFIDENTIAL, nothing herein prevents a Receiving Party from 

challenging the designation as to parts of the document. 

If it comes to a Designating Party’s attention that information or items that it designated 

for protection do not qualify for protection, that Designating Party must promptly notify all other 

Parties that it is withdrawing the mistaken designation. 

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 

(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 

designated. 

Designation in conformity with this Order requires: 

(a) for information in documentary form (e.g., paper or electronic documents, but 

excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 

Party affix the legend “CONFIDENTIAL” to each page that contains Protected Material. A 

Party or Non-Party that makes original documents or materials available for inspection need not 

designate them for protection until after the inspecting Party has indicated which material it 

would like copied and produced. During the inspection and before the designation, all of the 

material made available for inspection shall be deemed “CONFIDENTIAL.” After the 

inspecting Party has identified the documents it wants copied and produced, the Producing Party 

must determine which documents, or portions thereof, qualify for protection under this Order. 

Then, before producing the specified documents, the Producing Party must affix the 

“CONFIDENTIAL” legend to each page that contains Protected Material. 

(b) for testimony given in deposition or in other pretrial or trial proceedings, that 

the Designating Party identify on the record, before the close of the deposition, hearing, or other 

proceeding, all protected testimony. Alternatively, counsel for a deposed witness may make a 

confidentiality designation within 10 court days of receiving the final deposition transcript by 
STIPULATED PROTECTIVE ORDER 

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identifying those specific portions of the testimony as to which protection is sought. Only those 

portions of the testimony that are designated for protection, either on the record or within the 10-

day period, shall be covered by the provisions of this Order. The Designating Party shall inform 

the Court reporter that transcripts containing Protected Material shall have an obvious legend on 

the title page that the transcript contains Protected Material. Any transcript that is prepared 

before the expiration of a 10-day period shall be treated during that period as if it had been 

designated “CONFIDENTIAL” in its entirety unless otherwise agreed. After the expiration of 

that period, the transcript shall be treated only as actually designated. Pages of transcribed 

deposition testimony or exhibits to depositions that reveal Protected Material must be separately 

bound by the court reporter and may not be disclosed to anyone except as permitted under this 

Stipulated Protective Order; and 

(c) for information produced in some form other than documentary and for any 

other tangible items, that the Producing Party affix in a prominent place on the exterior of the 

container or containers in which the information or item is stored the legend 

“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 

the Producing Party, to the extent practicable, shall identify the protected portion(s). 

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 

designate qualified information or items does not, standing alone, waive the Designating Party’s 

right to secure protection under this Order for such material. Upon timely correction of a 

designation, the Receiving Party must make reasonable efforts to assure that the material is 

treated in accordance with the provisions of this Order. 

No party shall be found to have violated the Order for failing to maintain the 

confidentiality of information during a time when that material has not been designated 

“CONFIDENTIAL,” even where the failure to so designate was inadvertent and where the 

information is subsequently designated “CONFIDENTIAL.” 

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 
STIPULATED PROTECTIVE ORDER 

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 

burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 

challenge a confidentiality designation by electing not to mount a challenge promptly after the 

original designation is disclosed. 

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 

process by providing written notice of each designation it is challenging (e.g., by Bates number 

for documents) and describing the basis for each challenge. To avoid ambiguity as to whether a 

challenge has been made, the written notice must recite that the challenge to confidentiality is 

being made in accordance with this specific paragraph of the Protective Order. The parties shall 

attempt to resolve each challenge in good faith and must begin the process by conferring directly 

(in voice to voice dialogue; other forms of communication are not sufficient) within 14 days of 

the date of service of notice, unless otherwise agreed. In conferring, the Challenging Party must 

explain the basis for its belief that the confidentiality designation was not proper and must give 

the Designating Party an opportunity to review the designated material, to reconsider the 

circumstances, and, if no change in designation is offered, to explain the basis for the chosen 

designation. A Challenging Party may proceed to the next stage of the challenge process only if it 

has engaged in this meet and confer process first or establishes that the Designating Party is 

unwilling to participate in the meet and confer process in a timely manner. 

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 

intervention, the parties shall follow the Court’s Standing Order in Civil Cases regarding 

Discovery and Discovery Motions. The parties may file a joint letter brief regarding 

retaining confidentiality within 21 days of the initial notice of challenge or within 14 days of 

the parties agreeing that the meet and confer process will not resolve their dispute, whichever 

is earlier. Failure by a Designating Party to file such discovery dispute letter within the 

applicable 21 or 14 day period (set forth above) with the Court shall automatically waive the 

confidentiality designation for each challenged designation. If, after submitting a joint letter 

brief, the Court allows that a motion may be filed, any such motion must be accompanied by 

a competent declaration affirming that the movant has complied with the meet and confer 
STIPULATED PROTECTIVE ORDER 

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requirements imposed in the preceding paragraph. The Court, in its discretion, may elect to 

transfer the discovery matter to a Magistrate Judge. 

In addition, the parties may file a joint letter brief regarding a challenge to a 

confidentiality designation at any time if there is good cause for doing so, including a 

challenge to the designation of a deposition transcript or any portions thereof. If, after 

submitting a joint letter brief, the Court allows that a motion may be filed, any motion 

brought pursuant to this provision must be accompanied by a competent declaration 

affirming that the movant has complied with the meet and confer requirements imposed by 

the preceding paragraph. The Court, in its discretion, may elect to refer the discovery matter 

to a Magistrate Judge. 

The burden of persuasion in any such challenge proceeding shall be on the 

Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to 

harass or impose unnecessary expenses and burdens on other parties) may expose the 

Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality 

designation by failing to file a letter brief to retain confidentiality as described above, all 

parties shall continue to afford the material in question the level of protection to which it is 

entitled under the Producing Party’s designation until the court rules on the challenge. 

7. ACCESS TO AND USE OF PROTECTED MATERIAL 

7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 

or produced by another Party or by a Non-Party in connection with this case only for 

prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 

disclosed only to the categories of persons and under the conditions described in this Order. 

When the litigation has been terminated, a Receiving Party must comply with the provisions of 

section 13 below (FINAL DISPOSITION). 

Protected Material must be stored and maintained by a Receiving Party at a location and 

in a secure manner that ensures that access is limited to the persons authorized under this Order. 
STIPULATED PROTECTIVE ORDER 

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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 

ordered by the court or permitted in writing or on the record by the Designating Party, a 

Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to: 

(a) the Receiving Party’s Counsel (as defined in this Order), as well as employees 

of said Counsel to whom it is reasonably necessary to disclose the information for this litigation; 

(b) the officers, directors, and employees (excluding House Counsel) of the 

Receiving Party to whom disclosure is reasonably necessary for this litigation, provided that they 

have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 

(c) Experts (as defined in this Order) of the Receiving Party; 

(d) the court and its personnel; 

(e) court reporters and their staff, videographers and their staff, and mediators to 

whom disclosure is reasonably necessary for this litigation; 

(f) professional jury or trial consultants, mock jurors, and Professional Vendors to 

whom disclosure is reasonably necessary for this litigation, provided that they have signed the 

“Acknowledgment and Agreement to Be Bound” (Exhibit A); 

(f) during their depositions, witnesses in the action to whom disclosure is 

reasonably necessary and who have been provided with a copy of this Order; and 

(g) the author or recipient of a document containing the information or a 

custodian or other person who otherwise possessed or knew the information. 

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 

LITIGATION 

If a Party is served with a subpoena or a court order issued in other litigation that compels 

disclosure of any Protected Material, that Party must: 

(a) notify the Designating Party in writing, promptly, and in no event more than 

three (3) court days of receiving the subpoena or court order. Such notification shall include a 

copy of the subpoena or court order; 

(b) notify the party who caused the subpoena or order to issue in the other 

litigation that some or all of the material covered by the subpoena or order is subject to this 
STIPULATED PROTECTIVE ORDER 

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Order. Such notification shall be prompt, and in no event be made more than three (3) court days 

after receiving the subpoena or court request, and shall include a copy of this Order; and 

(c) cooperate with respect to all reasonable procedures sought to be pursued by 

the Designating Party whose Protected Material may be affected. 

If the Designating Party timely seeks a protective order, the Party served with the 

subpoena or court order shall not produce any Protected Material before a determination by the 

court from which the subpoena or order issued, unless the Party has obtained the Designating 

Party’s permission. The Designating Party shall bear the burden and expense of seeking 

protection in the appropriate court of the Protected Material. Nothing in these provisions should 

be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful 

directive from another court. 

9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 

LITIGATION 

(a) The terms of this Order are applicable to information produced by a NonParty in this action and designated as “CONFIDENTIAL.” Such information produced by NonParties in connection with this litigation is protected by the remedies and relief provided by this 

Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 

additional protections. 

(b) In the event that a Party is required, by a valid discovery request, to produce a 

Non-Party’s confidential information in its possession, and the Party is subject to an agreement 

with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 

(1) promptly notify in writing the requesting Party and the Non-Party that 

some or all of the information requested is subject to a confidentiality agreement with a NonParty; 

(2) promptly provide the Non-Party with a copy of this Order, the relevant 

discovery request(s), and a reasonably specific description of the information requested; and 

(3) make the information requested available for inspection by the NonParty. 
STIPULATED PROTECTIVE ORDER 

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(c) If the Non-Party fails to object or seek a protective order from this court 

within 14 days of receiving the notice and accompanying information, the receiving Party may 

produce the Non-Party’s confidential information responsive to the discovery request. If the 

Non-Party timely seeks a protective order, the receiving Party shall not produce any information 

in its possession or control that is subject to the confidentiality agreement with the Non-Party 

before a determination by the court. Absent a court order to the contrary, the Non-Party shall 

bear the burden and expense of seeking protection in this court of its Protected Material. 

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 

Material to any person or in any circumstance not authorized under this Order, the Receiving 

Party must immediately (a) notify in writing the Designating Party of the unauthorized 

disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, 

(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 

this Order, and (d) request such person or persons to execute the “Acknowledgment and 

Agreement to Be Bound” that is attached hereto as Exhibit A. 

11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 

MATERIAL 

When a Producing Party gives notice to Receiving Parties that certain inadvertently 

produced material is subject to a claim of privilege or other protection, the obligations of the 

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 

provision is not intended to modify whatever procedure may be established in an e-discovery 

order that provides for production without prior privilege review. Pursuant to Federal Rule of 

Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 

communication or information covered by the attorney-client privilege or work product 

protection, the parties may incorporate their agreement in the stipulated protective order 

submitted to the court. 

12. MISCELLANEOUS 
STIPULATED PROTECTIVE ORDER 

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12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 

seek its modification by the court in the future. 

12.2 Right to Assert Other Objections. By stipulating to the entry of this Order, no 

Party waives any right it otherwise would have to object to disclosing or producing any 

information or item on any ground not addressed in this Order. Similarly, no Party waives any 

right to object on any ground to use in evidence of any of the material covered by this Order. 

12.3 Filing Protected Material. Without written permission from the Designating Party 

or a court order secured after appropriate notice to all interested persons, a Party may not file in 

the public record in this action any Protected Material. A Party that seeks to file under seal any 

Protected Material must comply with Civil Local Rule 79-5. Pursuant to Civil Local Rule 79-5, 

a sealing order will issue only upon a request establishing that the Protected Material at issue is 

privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a 

Receiving Party’s request to file Protected Material under seal pursuant to Civil Local Rule 

79-5(d) is denied by the court, then the Receiving Party may file the information in the public 

record pursuant to Civil Local Rule 79-5(e) unless instructed otherwise by the court. 

13. FINAL DISPOSITION 

Within 60 days after the final disposition of this action, as defined in section 4, each 

Receiving Party must make commercially reasonable efforts to return all Protected Material to 

the Producing Party or destroy such material. As used in this subdivision, “all Protected 

Material” includes all copies, abstracts, compilations, summaries, and any other format 

reproducing or capturing any of the Protected Material. Whether the Protected Material is 

returned or destroyed, the Receiving Party must certify in writing to the Producing Party (and, if 

not the same person or entity, to the Designating Party) by the 60-day deadline that it has 

complied with this section. Notwithstanding this provision, Counsel are entitled to retain an 

archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 

memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, 

and consultant and expert work product, even if such materials contain Protected Material. Any 

such archival copies that contain or constitute Protected Material remain subject to this 
STIPULATED PROTECTIVE ORDER 

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Protective Order as set forth in section 4 (DURATION). 

 
STIPULATED PROTECTIVE ORDER 

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 

DATED: April 20, 2018 DAVID R. STICKNEY 

JONATHAN D. USLANER 

BRANDON MARSH 

JENNY BARBOSA 

BERNSTEIN LITOWITZ BERGER & 

GROSSMANN LLP

 /s/ David R. Stickney 

By: David R. Stickney 

Attorneys for Lead Plaintiffs Public School 

Teachers’ Pension & Retirement Fund of 

Chicago and Arkansas Teacher Retirement 

System and Lead Counsel for the Class 

DATED: April 20, 2018 JORDAN ETH 

ERIK J. OLSON 

MARK R.S. FOSTER 

AMANDA TRELEAVEN 

SU-HAN WANG 

MORRISON & FOERSTER LLP

/s/ Mark R.S. Foster 

By: Mark R.S. Foster 

Attorneys for Defendants RH, Gary Friedman, 

and Karen Boone 

PURSUANT TO STIPULATION, IT IS SO ORDERED. 

DATED: $SULOBB____________________________________________ 

HONORABLE YVONNE GONZALEZ ROGERS 

UNITED STATES DISTRICT JUDGE 

 

 
STIPULATED PROTECTIVE ORDER 

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ATTESTATION (CIVIL LOCAL RULE 5-1(i)(3)) 

In accordance with Civil Local Rule 5-1(i)(3), I attest that concurrence in the filing of 

this document has been obtained from the signatories. 

Dated: April 20, 2018 BERNSTEIN LITOWITZ BERGER & 

 GROSSMANN LLP 

 /s/ David R. Stickney 

David R. Stickney 

 
STIPULATED PROTECTIVE ORDER 

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EXHIBIT A 

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 

I, ________________________________________ [print or type full name], of 

______________________________________________________________________________ 

[print or type full address], declare under penalty of perjury that I have read in its entirety and 

understand the Stipulated Protective Order (the “Order”) that was issued by the United States 

District Court for the Northern District of California on [date] in the case of In re RH, Inc. 

Securities Litigation, Case No. 4:17-00554-YGR (N.D. Cal.). I agree to comply with and to be 

bound by all the terms of the Order and I understand and acknowledge that failure to so comply 

could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that 

I will not disclose in any manner any information or item that is subject to this Order to any 

person or entity except in strict compliance with the provisions of this Order. 

I further agree to submit to the jurisdiction of the United States District Court for the Northern 

District of California for the purpose of enforcing the terms of this Order, even if such 

enforcement proceedings occur after termination of this action. 

I hereby appoint ___________________________________ [print or type full name] of 

______________________________________________________________________________ 

[print or type full address and telephone number] as my California agent for service of process in 

connection with this action or any proceedings related to enforcement of this Order. 

Date: ______________________________________ 

City and State where sworn and signed: _________________________________ 

Printed name: _______________________________ 

Signature: __________________________________