Marsha Loya v. Wal-Mart Stores, Inc. et al

Filing 18

PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg re Stipulation for Protective Order 17 . (See Order for Further Details) (kl)

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Cheryl Johnson-Hartwell (SBN 221063)
E-mail: [e-mail]
Mitchell A. Wrosch, (SBN 262230)
E-mail: [e-mail]
BURKE, WILLIAMS & SORENSEN, LLP
444 South Flower Street, Suite 2400
Los Angeles, CA 90071-2953
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
WAL-MART STORES, INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARSHA LOYA,

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Plaintiff,

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PROTECTIVE ORDER

v.

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Case No. 2:15-CV-04775-ODW-AGR

WAL-MART STORES, INC., a
Delaware corporation, and DOES 1 50,

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Defendants.

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1.

A.

PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection from public

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

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth

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in Section 12.3, below, that this Stipulated Protective Order does not entitle them to

B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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CASE NO.: 2:15-CV-04775-ODW-AGR
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file confidential information under seal; Civil Local Rule 79-5 sets forth the

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procedures that must be followed and the standards that will be applied when a

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party seeks permission from the court to file material under seal.

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B.

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This action is likely to involve commercial, financial, and/or proprietary

GOOD CAUSE STATEMENT

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information for which special protection from public disclosure and from use for

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any purpose other than prosecution of this action is warranted. Such confidential

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and proprietary materials and information consist of, among other things,

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confidential business or financial information, information regarding confidential

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business practices, or other confidential commercial information (including

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information implicating privacy rights of third parties), information otherwise

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generally unavailable to the public, or which may be privileged or otherwise

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protected from disclosure under state or federal statutes, court rules, case decisions,

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or common law. Accordingly, to expedite the flow of information, to facilitate the

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prompt resolution of disputes over confidentiality of discovery materials, to

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adequately protect information the parties are entitled to keep confidential, to

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ensure that the parties are permitted reasonable necessary uses of such material in

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preparation for and in the conduct of trial, to address their handling at the end of the

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litigation, and serve the ends of justice, a protective order for such information is

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justified in this matter. It is the intent of the parties that information will not be

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designated as confidential for tactical reasons and that nothing be so designated

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without a good faith belief that it has been maintained in a confidential, non-public

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manner, and there is good cause why it should not be part of the public record of

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this case.

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

2.

DEFINITIONS
2.1

Action: refers to the Complaint for Damages filed by Plaintiff against

WAL-MART on May 21, 2015 in the Superior Court of California, County of Los
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CASE NO.: 2:15-CV-04775-ODW-AGR
STIPULATED PROTECTIVE ORDER

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Angeles, Case No. BC582443, and subsequently removed to the United States

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District Court for the Central District of California, Case No. 2:15-CV-04775-

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ODW-AGR.

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2.2

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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2.4

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
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Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.

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2.7

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

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this Action.

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2.8

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

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

2.9

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

other legal entity not named as a Party to this action.
2.10 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
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have appeared in this Action on behalf of that party or are affiliated with a law firm

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which has appeared on behalf of that party, and includes support staff.

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2.11 Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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

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and their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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

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Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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
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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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

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pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to

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

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Designating Party to sanctions.

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

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected

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

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A Party or Non-Party that makes original documents available for inspection

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine

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

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

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

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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(b)

for testimony given in depositions that the Designating Party

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identify the Disclosure or Discovery Material on the record, before the close of the

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deposition all protected testimony.

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(c)

for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a prominent place

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on the exterior of the container or containers in which the information is stored the

B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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legend “CONFIDENTIAL.” If only a portion or portions of the information

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warrants protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3

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

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the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A receiving party may use designated material only

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for this litigation. Designated material may be disclosed only to the categories of

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persons and under the conditions described in this Order.

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7.2

Disclosure of CONFIDENTIAL Material Without Further Approval.

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Unless otherwise ordered by the Court or permitted in writing by the designator, a

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receiving party may disclose any material designated CONFIDENTIAL only to:

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(a)

The receiving party’s outside counsel of record in this action

and employees of outside counsel of record to whom disclosure is reasonably
necessary;

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(b)

The officers, directors, and employees of the receiving party to

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whom disclosure is reasonably necessary, and who have signed the Agreement to

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Be Bound (Exhibit E-1);

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(c)

Experts retained by the receiving party’s outside counsel of

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record to whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit E-1);

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(d)

The Court and its personnel;

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(e)

Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably necessary,

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and who have signed the Agreement to Be Bound (Exhibit E-1);

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(f)

During their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the Agreement to Be

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Bound (Exhibit E-1); and

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(g)

The author or recipient of a document containing the material, or

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

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(i)

Any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon any of the parties engaged in settlement

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negotiations.

B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such

notification shall include a copy of the subpoena or court order;

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(b)

promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall include

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a copy of this Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

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

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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

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protection in that court of its confidential material and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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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

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by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is protected

B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery

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request, to produce a Non-Party’s confidential information in its possession, and the

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Party is subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the

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Stipulated Protective Order in this Action, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and

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(3)

make the information requested available for inspection

by the Non-Party, if requested.

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(c)

If the Non-Party fails to seek a protective order from this court

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

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Receiving Party may produce the Non-Party’s confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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

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

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Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
The inadvertent production by any of the undersigned Parties or non-Parties

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to the Proceedings of any Document, Testimony or Information during discovery in

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this Proceeding without a “Confidential” designation, shall be without prejudice to

B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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

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waived any rights by such inadvertent production. In the event that any Document,

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

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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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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

B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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disclosure of privileged Documents;

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c.

such Disclosure; and/or

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the Producing Party did not take reasonable or timely steps to rectify

d.

such disclosure acts as a waiver of applicable privileges or protections

associated with such Documents.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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

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of a communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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12.

MISCELLANEOUS
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

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

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disclosing or producing any information or item on any ground not addressed in

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

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any ground to use in evidence of any of the material covered by this Protective

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Order.

B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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CASE NO.: 2:15-CV-04775-ODW-AGR
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12.3 Filing Protected Material. A Party that seeks to file under seal any

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

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may only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. If a Party's request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information

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in the public record unless otherwise instructed by the court.

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13.

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FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60

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days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material. As

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used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of the

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Protected Material. Whether the Protected Material is returned or destroyed, the

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Receiving Party must submit a written certification to the Producing Party (and, if

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

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(1) identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and (2) affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such archival

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copies that contain or constitute Protected Material remain subject to this Protective

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Order as set forth in Section 4 (DURATION).

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

14.

Any violation of this Order may be punished by any and all appropriate
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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED:

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Attorneys for Plaintiff

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DATED: March 15, 2016

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/s/ Mitchell A. Wrosch
Attorneys for Defendant

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED:

March 17. 2016

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ALICIA G. ROSENBERG
United States District Magistrate Judge

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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CASE NO.: 2:15-CV-04775-ODW-AGR
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

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______________________ [print or type full address], declare under penalty of

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perjury that I have read in its entirety and understand the Stipulated Protective

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Order that was issued by the United States District Court for the Central District of

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California on [date] in the case of Loya v. Wal-Mart Stores, Inc., 2:15-CV-04775-

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ODW-AGR. I agree to comply with and to be bound by all the terms of this

______________________________ [print or type full name], of

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Stipulated Protective Order and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item

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that is subject to this Stipulated Protective Order to any person or entity except in

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strict compliance with the provisions of this Order.

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

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the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

18

termination of this action. I hereby appoint ____________________________

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[print or type full name] of _______________________________________ [print

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or type full address and telephone number] as my California agent for service of

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process in connection with this action or any proceedings related to enforcement of

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this Stipulated Protective Order.

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Date: _________________________

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City and State where sworn and signed: __________________________________

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Printed name: _______________________________________

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Signature: ___________________________________

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B URKE , W ILLIAMS &
S ORENSEN , LLP
ATTORNEYS AT LAW
LOS ANGELES

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CASE NO.: 2:15-CV-04775-ODW-AGR
STIPULATED PROTECTIVE ORDER