Maria Gutierrez v. Wal-Mart Stores, Inc.

Filing 26

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 25 , 24 . [See Order for details.] (san)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARIA GUTIERREZ,
Plaintiff,

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v.
WAL-MART STORES, INC., and
DOES 1-100,,

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Case No. 2:15-CV-03632 GW (JEMx)
DISCOVERY MATTER
[PROPOSED] ORDER ON
STIPULATION FOR PROTECTIVE
ORDER

Defendants.

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Recitals and Basis of Order:

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A.

The parties to this action, Defendant WAL-MART STORES, INC.

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(“Wal-Mart” or “Defendant”) and Plaintiff MARIA GUTIERREZ (“Plaintiff”)

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(collectively the “Parties”) are conducting discovery, which has and may include

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the production of documents, the answering of interrogatories and requests for

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admission, the taking of testimony by oral deposition and examination, and third-

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party subpoenas;

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B.

The Parties assert that certain documents and information responsive

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to the discovery contain material non-public financial information, personal

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employment records of non-Party individuals, or other private, confidential or

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proprietary or trade secret information, disclosure of which might result in

B URKE , W ILLIAMS &
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ATTORNEYS AT LAW
LOS ANGELES

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

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irreparable harm to the respective Parties or third parties. Although propounding

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Parties may be entitled to the discovery sought, the Parties assert that any such

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information should remain non-public and protected;

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C.

The Parties therefore seek to reasonably limit disclosure of such non-

public and protected information; and
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The Parties have requested an Order based on their Stipulated

Protective Order.

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Order:

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1.

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In this Stipulation and Protective Order, the words set forth below

shall have the following meanings:
a.

“Proceeding” means the above-entitled proceeding (Case No.

2:15-CV-03632 GW (JEMx).
b.

“Court” means the Hon. George H. Wu, Magistrate Judge John

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E. McDermott, or any other judge to which this Proceeding may be assigned,

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including Court staff participating in such proceedings.

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c.

“Confidential” means any information which is in the

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possession of a Designating Party who believes in good faith that such information

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is entitled to confidential treatment under applicable law.

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d.

“Confidential Materials” or “Confidential Information” means

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any Documents, Testimony or Information as defined below designated as

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“Confidential” pursuant to the provisions of this Stipulation and Protective Order.

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e.

“Designating Party” means the Party that designates Materials

as “Confidential.”
f.

“Disclose” or “Disclosed” or “Disclosure” means to reveal,

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divulge, give, or make available Materials, or any part thereof, or any information

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contained therein.

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g.

“Document” or “Documents” means (i) any “Writing,”

“Original,” and “Duplicate” as those terms are defined by Federal Rule of Evidence

B URKE , W ILLIAMS &
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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

LOS ANGELES

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1001, which have been produced in discovery in this Proceeding by any person, and

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(ii) any copies, reproductions, or summaries of all or any part of the foregoing.

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h.

“Information” means the content of Documents or Testimony.

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i.

“Testimony” means all depositions, declarations or other

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testimony taken or used in this Proceeding.
2.

The entry of this Stipulation and Protective Order does not alter,

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waive, modify, or abridge any right, privilege or protection otherwise available to

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any Party with respect to the discovery of matters, including but not limited to any

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Party’s right to assert the attorney-client privilege, the attorney work product

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doctrine, or other privileges, or any Party’s right to contest any such assertion.
3.

This Stipulation and Protective Order shall govern all materials

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deemed to be “Confidential Information.” Such Confidential Information shall

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include the following:
a.

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Any and all Documents referring or related to confidential and

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proprietary human resources or business information; financial records of the

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Parties; compensation of Wal-Mart’s current or former personnel; policies,

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procedures and/or training materials of

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organizational structure, and Documents related to third parties;
b.

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Wal-Mart; and/or Wal-Mart’s

Any Documents from the personnel, medical or workers’

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compensation file of any current or former employee or contractor, specifically

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excluding Documents from Plaintiffs’ personnel, medical, and/or workers’

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compensation files;
c.

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Any Documents relating to the medical and/or health

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information of any of Defendant’s current or former employees or contractors,

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specifically excluding Documents relating to the medical and/or health information

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of Plaintiffs;

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d.

Any portions of depositions (audio or video) where Confidential

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Information is disclosed or used as exhibits.

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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

LOS ANGELES

4.

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Any Documents, Testimony or Information to be designated as

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Confidential must be clearly so designated before the Document, Testimony or

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Information is Disclosed or produced. The “Confidential” designation should not

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obscure or interfere with the legibility of the designated Information.
a.

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For Documents (apart from transcripts of depositions or other

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pretrial or trial proceedings), the designation of Confidential Information produced

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shall be made by placing the following legend on the face of the Document and

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each page so designated “CONFIDENTIAL” or otherwise expressly identified as

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confidential. The Designating Parties will use their best efforts to limit the number

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of Documents designated Confidential.
b.

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For Testimony given in depositions the Designating Party may

either:
i.

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identify on the record, before the close of the deposition,

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all “Confidential” Testimony, by specifying all portions

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of the Testimony that qualify as “Confidential;” or
ii.

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designate the entirety of the Testimony at the deposition

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as “Confidential” (before the deposition is concluded)

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with the right to identify more specific portions of the

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Testimony as to which protection is sought within 30 days

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following receipt of the deposition transcript. In

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circumstances where portions of the deposition Testimony

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are designated for protection, the transcript pages

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containing “Confidential” Information may be separately

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bound by the court reporter, who must affix to the top of

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each page the legend “Confidential,” as instructed by the

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Designating Party.

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c.

For Information produced in some form other than Documents,

and for any other tangible items, including, without limitation, compact discs or

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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

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DVDs, the Designating Party must affix in a prominent place on the exterior of the

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container or containers in 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 “Confidential”

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portions.

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5.

Confidential Information shall be held in confidence by each qualified

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recipient to whom it is disclosed, shall be used only for purposes of this action,

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shall not be used for any business purpose, and shall not be disclosed to any person

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who is not a qualified recipient. All produced Confidential Information shall be

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carefully maintained so as to preclude access by persons who are not qualified

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recipients.
6.

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Qualified recipients shall include only the following:

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a.

the Court;

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b.

(1) Attorneys of record in the Proceedings and their affiliated

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attorneys, paralegals, clerical and secretarial staff employed by such attorneys who

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are actively involved in the Proceedings and are not employees of any Party, (2) In-

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house counsel to the undersigned Parties and the paralegal, clerical and secretarial

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staff employed by such counsel. Provided, however, that each non-lawyer given

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access to Confidential Materials shall be advised that such Materials are being

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Disclosed pursuant to, and are subject to, the terms of this Stipulation and

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Protective Order and that they may not be Disclosed other than pursuant to its

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terms;

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c.

those officers, directors, partners, members, employees and

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agents of all non-designating Parties that counsel for such Parties deems necessary

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to aid counsel in the prosecution and defense of this Proceeding; provided,

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however, that prior to the Disclosure of Confidential Materials to any such officer,

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director, partner, member, employee or agent, counsel for the Party making the

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Disclosure shall deliver a copy of this Stipulation and Protective Order to such

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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

LOS ANGELES

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person, shall explain that such person is bound to follow the terms of such Order,

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and shall secure the signature of such person on a statement in the form attached

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hereto as Exhibit A;

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d.

court reporters in this Proceeding (whether at depositions,

hearings, or any other proceeding);
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any deposition, trial or hearing witness in the Proceeding who

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previously has had access to the Confidential Materials, or who is currently or was

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previously an officer, director, partner, member, employee or agent of an entity that

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has had access to the Confidential Materials;

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f.

any deposition or non-trial hearing witness in the Proceeding

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who previously did not have access to the Confidential Materials; provided,

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however, that each such witness given access to Confidential Materials shall be

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advised that such Materials are being Disclosed pursuant to, and are subject to, the

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terms of this Stipulation and Protective Order and that they may not be Disclosed

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other than pursuant to its terms;

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g.

Persons other than legal counsel who have been retained or

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specially employed by a party as an expert witness for purposes of this lawsuit or to

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perform investigative work or fact research;

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h.

outside experts or expert consultants consulted by the

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undersigned Parties or their counsel in connection with the Proceeding, whether or

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not retained to testify at any oral hearing; provided, however, that prior to the

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Disclosure of Confidential Materials to any such expert or expert consultant,

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counsel for the Party making the Disclosure shall deliver a copy of this Stipulation

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and Protective Order to such person, shall explain its terms to such person, and

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shall secure the signature of such person on a statement in the form attached hereto

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as Exhibit A. It shall be the obligation of counsel, upon learning of any breach or

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threatened breach of this Stipulation and Protective Order by any such expert or

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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

LOS ANGELES

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expert consultant, to promptly notify counsel for the Designating Party of such

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breach or threatened breach; and
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The parties to this litigation, their officers and professional

employees.
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Each counsel shall be responsible for providing notice of the

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Protective Order and the terms therein to persons to whom they disclose

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Confidential Information. Persons to whom Confidential Information is shown

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shall be informed of the terms of this Order and advised that its breach may be

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punished or sanctioned as contempt of the Court. Such deponents may be shown

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Confidential materials during their deposition but shall not be permitted to keep

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copies of said Confidential materials nor any portion of the deposition transcript

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reflecting the Confidential Information.

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If either party objects to the claims that information should be deemed

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Confidential, that party’s counsel shall inform opposing counsel in writing within

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thirty (30) days of receipt of the Confidential materials that the information should

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not be so deemed, and the parties shall attempt first to dispose of such disputes in

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good faith and on an informal basis. If the parties are unable to resolve their

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dispute, the non-designating counsel may present a motion to the Court objecting to

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such status. The information shall continue to have Confidential status during the

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pendency of any such motion.

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8.

No copies of Confidential Information shall be made except by or on

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behalf of attorneys of record, in-house counsel or the parties in this action. Any

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person making copies of such information shall maintain all copies within their

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possession or the possession of those entitled to access to such information under

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the Protective Order.

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All information produced in this action, whether deemed Confidential

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or not, shall be used only for purposes of preparing for, conducting, participating in

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the conduct of, and/or prosecuting and/or defending the Proceeding, and not for any

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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

LOS ANGELES

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other purpose.
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The Protective Order shall likewise govern all materials deemed

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“Attorneys' Eyes Only”, which materials shall include any Documents containing

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corporate trade secrets, nonpublic research and development data, pricing formulas,

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prospective inventory management programs, confidential business information not

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generally known to the general public, and customer-related information.

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Qualified recipients of Documents marked "ATTORNEYS' EYES ONLY"

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shall include only the following: In-house counsel and law firms for each party and

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the secretarial, clerical and paralegal staff of each.

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The inadvertent production by any of the undersigned Parties or non-

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Parties to the Proceedings of any Document, Testimony or Information during

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discovery in this Proceeding without a “Confidential” designation, shall be without

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prejudice to any claim that such item is “Confidential” and such Party shall not be

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held to have waived any rights by such inadvertent production. In the event that any

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Document, Testimony or Information that is subject to a “Confidential” designation

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is inadvertently produced without such designation, the Party that inadvertently

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produced the Document shall give written notice of such inadvertent production

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within twenty-one (21) days of discovery of the inadvertent production, together

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with a further copy of the subject Document, Testimony or Information designated

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as “Confidential” (the “Inadvertent Production Notice”). Upon receipt of such

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Inadvertent Production Notice, the Party that received the inadvertently produced

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Document, Testimony or Information shall promptly destroy the inadvertently

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produced Document, Testimony or Information and all copies thereof, or, at the

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expense of the producing Party, return such together with all copies of such

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Document, Testimony or Information to counsel for the producing Party and shall

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retain only the “Confidential” designated Materials. Should the receiving Party

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choose to destroy such inadvertently produced Document, Testimony or

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Information, the receiving Party shall notify the producing Party in writing of such

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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

LOS ANGELES

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destruction within ten (10) days of receipt of written notice of the inadvertent

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production. This provision is not intended to apply to any inadvertent production of

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any Information protected by attorney-client or work product privileges. In the

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event that this provision conflicts with any applicable law regarding waiver of

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confidentiality through the inadvertent production of Documents, Testimony or

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Information, such law shall govern.

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The disclosure or production of any Documents subject to a legally

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recognized claim of privilege (including, without limitation, the attorney-client

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privilege, work-product doctrine, or other applicable privilege) shall be protected

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and excluded from argument from any party that:

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a.

the disclosure was not inadvertent by the Producing Party;

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b.

the Producing Party did not take reasonable steps to prevent the

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disclosure of privileged Documents;
c.

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rectify such Disclosure; and/or
d.

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the Producing Party did not take reasonable or timely steps to

such disclosure acts as a waiver of applicable privileges or

protections associated with such Documents.
13.

In the event the Parties need to file any Documents under seal in order

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to protect its confidentiality under this Order, the Parties will comply with the

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requirements of Local Rule 79-5.1 by filing an application to file the Documents

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under seal.

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14.

The termination of this action shall not relieve the parties and persons

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obligated hereunder from their responsibility to maintain the confidentiality of

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information designated confidential pursuant to this Stipulation and Protective

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Order.

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15.

Upon termination of this action by entry of a final judgment (inclusive

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of any appeals or petitions for review), the parties may request the return of all

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previously furnished Confidential Information, including any copies thereof, and

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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

LOS ANGELES

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each person or party to whom such Confidential Information has been furnished or

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produced shall be obligated to return it within thirty (30) days of said request.

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Notwithstanding the aforementioned obligation, counsel for the parties may keep a

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copy of said Documents pursuant to each of his or her responsibilities under

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California Rules of Professional Conduct and/or legal requirements and/or

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obligations.
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Nothing in this Order shall be construed as an admission as to the

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relevance, authenticity, foundation or admissibility of any Document, material,

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transcript, or other information.
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Nothing herein shall impose any restrictions on the use or disclosure

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by a party of material obtained by such party independent of discovery in this

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action, whether or not such material is also obtained through discovery in this

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action, or from disclosing its own confidential material as it deems appropriate.

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Nothing in this Protective Order shall be deemed to restrict in any way any party’s

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own Documents or information, or the party’s attorneys with respect to that party’s

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own Documents or information.

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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

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18.

Nothing in the Protective Order shall be deemed to preclude any party

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from seeking and obtaining, on an appropriate showing, a modification of this

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Order.

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19.

The Protective Order is entered pursuant to the Federal Rules of Civil

Procedure.

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IT IS SO ORDERED.

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Dated: September 15, 2015

John E. McDermott
U.S. District Court Magistrate Judge

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ATTORNEYS AT LAW

[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE ORDER

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