Robert Robb v. Lowe's HIW Inc et al

Filing 25

PROTECTIVE ORDER by Magistrate Judge Ralph Zarefsky re Stipulation for Protective Order 24 (ib)

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Hunton & Williams LLP

UNITED STATES DISTRICT COURT

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550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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ROBERT ROBB

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Case No.: CV13-03752-GHK-RZ

Plaintiff,

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v.

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LOWE’S HIW, INC., a business entity,
Hon. George King
exact form unknown; and Does 1
through 100, inclusive,,
Magistrate Judge Ralph Zarefsky

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[PROPOSED] ORDER

Defendants.

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____________________________________________________________________
[PROPOSED] ORDER

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[PROPOSED] ORDER
Pursuant to the stipulation by the Parties and good cause appearing therefor, the

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Court HEREBY ENTERS the Parties’ STIPULATED PROTECTIVE ORDER, the

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pertinent elements of which are as follows:

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1.0

Definitions.

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1.1

directors, employees, and in-house counsel (and their support staff).

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Party: Any party to this action, including all of its officers,

1.2

Disclosures or Discovery Material: All items or

information, regardless of the medium or manner generated, stored, or maintained

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

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(including, among other things, testimony, transcripts, documents or tangible things)

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that are produced or generated in disclosures or responses to discovery in this matter.

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1.3

“Confidential” Information or Items:

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(i)

Information that is a “trade secret” as that term is defined in

(ii)

Confidential and proprietary business and/or financial

(iii)

Non-public information about any individual or individuals,

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18 U.S.C. § 1839;

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information;

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including personnel records, evaluations, compensation levels, databases, surveys,

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statistical analysis, analyses of personnel practices, or other information incorporating

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or aggregating information pertaining to individuals; and/or

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(iv)

Information alleged in good faith by a Party to be subject to

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protection under the Federal Rules of Evidence and/or information that is confidential,

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of commercial value, and falling into one or more of the following categories:

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a.

Lowe’s HIW, Inc.’s policies and procedures for

b.

Documents that reflect the implementation of Lowe’s

operating its stores;

HIW, Inc.’s policies and procedures for operating its stores;

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[PROPOSED] ORDER

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c.

Information that is protected against disclosure by a

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written confidential information agreement between a third party and Plaintiff or

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Defendants; and

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Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

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d.

Business plans, models, marketing analyses, sales and

financial statements.
1.4

Designating Party: A Party or non-party that designates its

Disclosures or Discovery Material as “Confidential.”
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Receiving Party: A Party that receives Disclosures or

Discovery Material from a Designating Party.
1.6

Protected Material: Any Disclosures or Discovery Material

that is designated as “Confidential.”
1.7

Outside Counsel: Attorneys who are not employees of a

Party but who are retained to represent or advise a Party in this action.

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1.8

In-House Counsel: Attorneys who are employees of a Party.

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1.9

Counsel (without qualifier): Outside Counsel and In-House

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Counsel (as well as their support staffs).

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1.10 Expert: A person with specialized knowledge or experience

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in a matter pertinent to the litigation who has been retained by a Party or its Counsel

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to serve as an expert witness or as a consultant in this litigation; and who is not a past

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or a current employee of a Party and who, at the time of retention, was not anticipated

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to become an employee of a Party. This definition includes a professional jury or trial

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consultant retained in connection with this litigation.

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1.11 Professional Vendors: Persons or entities that provide

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litigation support services (e.g., photocopying, videotaping, translating, preparing

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exhibits or demonstrations, organizing, storing, retrieving data in any form or

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medium; etc.) and their employees and subcontractors.

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[PROPOSED] ORDER

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2.0

Scope.

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The protections conferred by this Protective Order cover not only

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Protected Material (as defined above), but also any information copied or extracted

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therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus

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testimony, conversations, or presentations by parties or counsel to or in court or in

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other settings that would reveal Protected Material.

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3.0

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The Parties hereby voluntarily agree to comply with the terms of this

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Duration.

Order immediately upon its execution by all parties hereto, and they shall continue to

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

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comply with its terms regardless of when or whether it is entered by the Court.

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Further, even after the termination of this litigation, the confidentiality obligations

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imposed by this Protective Order shall remain in effect until a Designating Party

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agrees otherwise in writing or a Court orders otherwise.

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4.0

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Designating Protected Material.
4.1

Exercise of Restraint and Care in Designating Disclosures or

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Discovery Material for Protection: Each Party or non-party that designates

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Disclosures or Discovery Material for protection under this Order must take care to

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limit any such designation to specific Disclosures or Discovery Material that qualifies

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under the appropriate confidentiality standard. A Designating Party must take care to

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designate for protection only those parts of the Disclosures or Discovery Material, so

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that other portions of the Disclosures or Discovery Material for which protection is

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not warranted are not swept unjustifiably within the ambit of this Protective Order. If

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it comes to a Designating Party’s attention that Disclosures or Discovery Material that

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that Party designated for protection does not qualify for protection at all, or does not

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qualify for the level of protection initially asserted, that Designating Party must

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promptly notify all other parties that it is withdrawing the improper designation.

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4.2

Manner and Timing of Designations: Except as otherwise

provided in this Protective Order (see, e.g., second paragraph of section 4.2(a),
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[PROPOSED] ORDER

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below), or as otherwise stipulated or ordered, Disclosures or Discovery Material that

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qualifies for protection under this Protective Order must be clearly so designated

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before such material is produced. Designation in conformity with this Protective

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Order requires:

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4.2(a) For Disclosures or Discovery Material in documentary form

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(apart from transcripts of depositions or other pretrial proceedings), that the

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Designating Party affix the legend “CONFIDENTIAL” prominently on each page that

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contains Protected Material. If only a portion or portions of a document or material on

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a page qualifies for protection, the Designating Party also must clearly identify the

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550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

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protected portion(s) (e.g., by making appropriate markings in the margins).

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A Party or non-party that makes original Disclosures or Discovery

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Material available for inspection need not designate them for protection until after the

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inspecting Party has indicated which Disclosures or Discovery Material it seeks to

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

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the Disclosures or Discovery Material made available for inspection shall be deemed

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“Confidential.” After the inspecting Party has identified the Disclosures or Discovery

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Material it seeks to have copied and produced, the Designating Party must determine

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which, if any, Disclosures or Discovery Material, or portions thereof, qualify for

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protection under this Protective Order. Prior to producing the specified Disclosures or

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Discovery Material, the Designating Party must affix the appropriate “Confidential”

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legend prominently on each page as set forth above.

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4.2(b) For Disclosures or Discovery Material in the form of

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testimony given in deposition or in other pretrial proceedings, that the Party or non-

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party offering the testimony identify on the record, before the close of the deposition,

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hearing, or other proceeding, all protected testimony, and further specify any portions

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of the testimony that qualify as “Confidential” information.

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Any Party may also designate testimony that is entitled to
protection by notifying all Parties in writing within twenty (20) days of receipt of the
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[PROPOSED] ORDER

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transcript, of the specific pages and lines of the transcript that should be treated as

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“Confidential” thereafter. Each Party shall attach a copy of such written notice or

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notices to the face of the transcript and each copy thereof in its possession, custody, or

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control. Unless otherwise indicated, all deposition transcripts shall be treated as

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“Confidential” for a period of twenty (20) days after the receipt of the transcript. This

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preliminary treatment, however, shall not limit a deponent’s right to review the

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transcript of his or her deposition under Federal Rule of Civil Procedure 30(e)(1).

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Transcript pages containing Protected Material must be separately
bound by the court reporter, who must prominently affix on each such page the legend

Hunton & Williams LLP

550 South Hope Street, Suite 2000
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“Confidential” as instructed by the Party or non-party offering or sponsoring the

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witness or presenting the testimony.

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4.2(c) For Disclosures or Discovery Material produced other than

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in documentary or testimony form, and for any other tangible items, that the

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Designating Party affix in a prominent place on the exterior of the container in which

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or disk (or similar device) on which the information or item is stored the legend

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“Confidential.” If only portions of the information or item warrant protection, the

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Designating Party, to the extent practicable, shall identify the protected portions,

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specifying whether they qualify as “Confidential.”

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4.3

Inadvertent Failures to Designate: An inadvertent failure to

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designate qualified information or items as “Confidential” does not, standing alone,

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waive the Designating Party’s right to secure protection under this Protective Order

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for such material. If any Disclosures or Discovery Material is appropriately

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designated as “Confidential” after the material was initially produced, the Receiving

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Party, on notification of the designation, must make reasonable efforts to assure that

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the material is treated in accordance with the provisions of this Protective Order.

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4.4

Nonparty Designations During Deposition: During the

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deposition of any nonparty, the nonparty may designate any Disclosures or Discovery

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Material as “Confidential” so long as it is conducted in good faith. Further, any
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[PROPOSED] ORDER

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nonparty seeking to invoke any protection accorded by the Protective Order must

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either provide a copy of the “Agreement to Be Bound by Protective Order” (attached

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as Exhibit A) executed by the nonparty to all counsel of record for the Parties or so

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agree on the record during the deposition.

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5.0

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Access To And Use Of Protected Material.
5.1

Basic Principles: A Receiving Party may use Protected

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Material that is disclosed or produced by another Party or by a non-party in

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connection with this case only for prosecuting, defending, or attempting to settle this

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litigation. Such Protected Material may be disclosed only to the categories of persons

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

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and under the conditions described in this Protective Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of Section 10

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

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in a secure manner that ensures that access is limited to persons authorized under this

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Protective Order.

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5.2

Disclosure of “Confidential” Information or Items: Unless

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otherwise ordered by the Court, or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated “Confidential” only

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to the following:

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5.2(a) The Receiving Party, who may share confidential

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information and items with its officers, directors, and employees (including In-House

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Counsel) to whom disclosure is reasonably necessary for this litigation;

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5.2(b) Outside Counsel in this litigation, as well as its employees to
whom it is reasonably necessary to disclose the information for this litigation;

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5.2(c) Experts (as defined in this Protective Order) of the Receiving

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Party to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Agreement to Be Bound by Protective Order” (attached as Exhibit A);

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5.2(d) The Court and its personnel;

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[PROPOSED] ORDER

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5.2(e) Court reporters, their staffs, and professional vendors to whom
disclosure is reasonably necessary for this litigation;

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5.2(f) During their depositions, witnesses in the action to whom

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disclosure is reasonably calculated to lead to discovery of admissible evidence. Pages

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of transcribed deposition testimony or exhibits to depositions that contain Protected

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Material must be separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Protective Order.

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5.2(g) The author of or recipient of the Protected Material or the
original source of the information.

Hunton & Williams LLP

550 South Hope Street, Suite 2000
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5.2(h) Professional vendors.

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5.2(i) The Parties to this litigation and their current directors, officers

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and employees to whom disclosure is reasonably necessary for this litigation.

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5.2(j) Any mediators or arbitrators utilized in this litigation.

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5.2(k) Witnesses who are being prepared by counsel to give testimony at

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a deposition or at trial, or who are being examined by counsel at a deposition or at

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trial.

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5.2(l) The Jury.

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6.0

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Protected Material Subpoenaed Or Ordered Produced

In Other Litigation.
If a Receiving Party is served with a subpoena or a Court order issued in

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other litigation that would compel disclosure of any information or items designated

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in this action as “Confidential,” the Receiving Party must immediately notify the

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Designating Party, in writing and in no event more than five (5) court days after

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receiving the subpoena or Court order. Such notification must include a copy of the

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subpoena or Court order. If Plaintiff is the Designating Party, notice shall be sent to

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counsel for Plaintiff at Sottile Baltaxe, 4333 Park Terrace Drive, Suite 160, Westlake

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Village, CA 91361. If Defendant is the Designating Party, notice shall be sent to

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Hunton & Williams LLP, 500 South Hope St., Suite 2000, Los Angeles, CA 90071.
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[PROPOSED] ORDER

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The Receiving Party also must immediately inform in writing the Party

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who caused the subpoena or order to issue in the other litigation that some or all the

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Protected Material covered by the subpoena or order is the subject of this Protective

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Order. In addition, the Receiving Party must deliver a copy of this Protective Order

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promptly to the Party in the other action that caused the subpoena or order to issue.

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The purpose of imposing these duties is to alert the interested parties to

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the existence of this Protective Order and to afford the Designating Party in this case

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an opportunity to try to protect its confidentiality interests in the Court from which the

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subpoena or order issued. The Designating Party shall bear the burdens and the

Hunton & Williams LLP

550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627

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expenses of seeking protection in that court of its Protected Material – and nothing in

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these provisions should be construed as authorizing or encouraging a Receiving Party

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in this action to disobey a lawful directive from another Court.

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7.0

Unauthorized Disclosure Of Protected Material.

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

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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to retrieve all copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d)

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request such person or persons to execute the “Acknowledgment and Agreement to Be

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Bound” (attached as Exhibit A).

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8.0

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In the event that counsel for any party desires to file with the Court any

Filing Protected Material.

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document which includes any Protected Material, an application to file such

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document(s) under seal shall be filed pursuant to the relevant Local Rules. This

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Section shall not apply to the Parties’ submission of exhibits in connection with a

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hearing or for trial, nor the handling of exhibits during the hearing or trial, without

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further order of the Court.
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[PROPOSED] ORDER

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9.0

Final Disposition.

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Unless otherwise ordered or agreed in writing by the Designating Party,

Party requests in writing the return or destruction of any or all of its Protected

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Material to the Receiving Party, within thirty (30) days of such request, the Receiving

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Party must submit a written certification, under penalty of perjury, to the Designating

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Party that all Protected Material was returned or destroyed, including any copies,

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abstracts, compilations, summaries or other forms of reproducing or capturing any of

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the Protected Material. Notwithstanding this provision, Outside Counsel may retain

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Hunton & Williams LLP

after the final termination of this litigation, including any appeals, if a Designating

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550 South Hope Street, Suite 2000
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an archival set of copies of Protected Material. Any such archival copies that contain

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or constitute Protected Material remain subject to this Protective Order.

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10.0 Miscellaneous.

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10.1 Right to Further Relief: Nothing in this Protective Order

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abridges the right of any person to seek its modification by the Court in the future.

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10.2 Right to Assert Other Objections: By stipulating to the entry

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of this Protective Order, no Party waives any right it otherwise would have to object

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to producing any Disclosures or Discovery Material on any ground not addressed in

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this Protective Order. Similarly, no Party waives any right to object on any ground to

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use in evidence of any of the Disclosures or Discovery Material covered by this

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Protective Order.

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IT IS SO ORDERED.

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DATED: February 7, 2014
UNITED STATES DISTRICT
JUDGE

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[PROPOSED] ORDER