Gregory D. White v. Lowes Home Centers, LLC

Filing 28

PROTECTIVE ORDER by Magistrate Judge Alexander F. MacKinno. Re Stipulation for Protective Order 27 . (ib)

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550 S. Hope Street
Suite 2000
Los Angeles, California 90071

Hunton & Williams LLP

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GREGORY D. WHITE,

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Plaintiff,

Case No.: 2:16-cv-07214-JFW (AFMx)
Hon. John F. Walter

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v.

[PROPOSED] PROTECTIVE ORDER

[Discovery Matter: Referred to
LOWE’S HOME CENTERS, LLC, a
North Carolina limited liability company. Magistrate Judge Alexander F.
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MacKinnon]
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Defendants.
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[PROPOSED] PROTECTIVE ORDER

[PROPOSED] ORDER

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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

Party. Any party to this action.

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1.2

Disclosures or Discovery Material.

All items or information,

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regardless of the medium or manner generated, stored, or maintained (including,

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among other things, testimony, transcripts, documents or tangible things) that are

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550 S. Hope Street
Suite 2000
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produced or generated in disclosures or responses to discovery in this matter.
1.3

“Confidential” Information or Items.
(i)

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

18 U.S.C. § 1839;
(ii)

Non-public information about Plaintiff or any other

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individuals, including personnel records, evaluations, compensation

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information, medical information, or other personal and confidential

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information;

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(iii)

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

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confidential, of commercial value, and falling into one or more of the

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following categories:

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a.

Defendant’s policies and procedures for operating its

business;
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Documents that reflect the implementation of

Defendant’s policies and procedures for operating its business;
c.

Business plans, models, marketing analyses, sales and

financial statements; and
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[PROPOSED] PROTECTIVE ORDER

d.

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Information that is protected against disclosure by a

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written confidential information agreement between a third party

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and Plaintiff or Defendant.
e.

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1.4

Designating Party. A Party or non-party that designates as

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

Materials that have been designated “Confidential.”

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1.6

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Personal or private information about non-parties.

designated as “Confidential.”

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1.7

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Protected Material. Any Disclosure or Discovery Material that is

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).

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Outside Counsel and In-House

Counsel (as well as their support staffs).

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1.10 Expert. A person with specialized knowledge or experience in a

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

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

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

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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 litigation

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

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

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their employees and subcontractors.

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[PROPOSED] PROTECTIVE ORDER

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2.0

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The protections conferred by this Protective Order cover not only Protected

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

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

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conversations, or presentations by parties or counsel to or in court or in other settings

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that would reveal Protected Material. However, this Protective Order does not govern

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the use of Confidential Information at trial. The use of Confidential Information at

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trial shall be governed by orders of the trial judge.

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3.0

Scope.

Duration.

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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

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.

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

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

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or does not qualify for the level of protection initially asserted, that Designating Party

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must 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

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provided in this Protective Order, or as otherwise stipulated or ordered, Disclosures or

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[PROPOSED] PROTECTIVE ORDER

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Discovery Material that qualifies for protection under this Protective Order must be

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clearly so designated before such material is produced.

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Designation in conformity with this Protective Order requires:

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4.2(a) For Disclosures or Discovery Material in documentary

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

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550 S. Hope Street
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A Party or non-party that makes original Disclosures or Discovery Material

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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

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notifying all Parties in writing within twenty (20) days of receipt of the transcript, of

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[PROPOSED] PROTECTIVE ORDER

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the specific pages and lines of the transcript that should be treated as “Confidential”

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thereafter. Each Party shall attach a copy of such written notice or notices to the face

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of the transcript and each copy thereof in its possession, custody, or control. Unless

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otherwise indicated, all deposition transcripts shall be treated as “Confidential” for a

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period of twenty (20) days after the receipt of the transcript.

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treatment, however, shall not limit a deponent’s right to review the transcript of his or

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

This preliminary

Transcript pages containing Protected Material must be separately bound by the

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court reporter, who must prominently affix on each such page the legend

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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 the

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

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the 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 information or items as “Confidential” does not, standing alone, waive the

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

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material. If any Disclosures or Discovery Material is appropriately designated as

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“Confidential” after the material was initially produced, the Receiving Party, on

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

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

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4.4

Nonparty Designations During Deposition: During the deposition

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of any nonparty, the nonparty may designate any Disclosures or Discovery Material as

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“Confidential” so long as it is conducted in good faith. Further, any nonparty seeking

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[PROPOSED] PROTECTIVE ORDER

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to invoke any protection accorded by the Protective Order must either provide a copy

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

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by the nonparty to all counsel of record for the Parties or so agree on the record during

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the deposition.

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5.0

Challenging Confidentiality Designations.
5.1

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Timing of Challenges. Unless a prompt challenge to a Designating

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Party’s confidentiality designation is necessary to avoid foreseeable substantial

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unfairness, unnecessary economic burdens, or a later significant disruption or delay of

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the litigation, a Party does not waive its right to challenge a confidentiality designation

Hunton & Williams LLP
550 S. Hope Street
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Los Angeles, California 90071

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by electing not to mount a challenge promptly after the original designation is

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disclosed.

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5.2

Meet and Confer. A Party who elects to initiate a challenge to a

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Designating Party’s confidentiality designation must first meet and confer in good

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faith with counsel for the Designating Party. In conferring, the challenging Party must

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

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must give the Designating Party an opportunity to review the designated material, to

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reconsider the circumstances, and, if no change in designation is offered, to explain

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the basis for the chosen designation within seven (7) days of the first meet and confer

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effort. A challenging Party may proceed to the next stage of the challenge process

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only if it has first engaged in this meet and confer process.

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5.3

Judicial Intervention. If the parties are unable to resolve the

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challenge, either Party may commence the process set forth in Local Rule 37-2 to

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obtain an order determining whether the material should be protected under this Order

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as “Confidential.”

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

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Designating Party. Until the Court rules on any challenge, all Parties shall continue to

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[PROPOSED] PROTECTIVE ORDER

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

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Designating Party’s designation.

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6.0

Access To And Use Of Protected Material.
6.1

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Basic Principles: A Receiving Party may use Protected Material

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

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this case only for prosecuting, defending, or attempting to settle this litigation. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Protective Order.

When the litigation has been

Hunton & Williams LLP
550 S. Hope Street
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Los Angeles, California 90071

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

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(“Final Disposition”).

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

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

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Protective Order.
6.2

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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:
6.2(a)

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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;
6.2(b)

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Outside Counsel in this litigation, as well as its

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employees to whom it is reasonably necessary to disclose the information for this

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litigation;

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6.2(c)

Experts (as defined in this Protective Order) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Agreement to Be Bound by Protective Order” (attached as

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[PROPOSED] PROTECTIVE ORDER

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Exhibit A);

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6.2(d)

The Court and its personnel;

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6.2(e)

Court reporters, their staffs, and professional vendors to

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whom disclosure is reasonably necessary for this litigation;
6.2(f)

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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.
6.2(g)

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550 S. Hope Street
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The author of or recipient of the Protected Material or the

original source of the information.

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6.2(h)

Professional vendors.

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6.2(i)

Any mediators or settlement officer, and their supporting

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

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discussions.

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7.0

Protected Material Subpoenaed Or Ordered Produced In Other
Litigation.

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If a Receiving Party is served with a subpoena or a Court order issued in other

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litigation that would compel disclosure of any information or items designated in this

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

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

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

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Court order.

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The Receiving Party also must immediately inform in writing the Party who

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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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[PROPOSED] 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 the

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

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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

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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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8.0

Unauthorized Disclosure Of Protected Material.

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

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Protected Material to any person or in any circumstance not authorized under this

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

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Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all

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

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

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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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9.0

Filing Protected Material.

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

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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 and Judge

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John Walter’s Standing Order. This Section shall not apply to the Parties’ submission

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of exhibits for trial, nor the handling of exhibits during trial.

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10.0 Final Disposition.

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

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

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

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[PROPOSED] PROTECTIVE ORDER

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

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

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all Protected Material was returned or destroyed, including any copies, abstracts,

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

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

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archival set of copies of Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order.
11.0 Inadvertent Production of Privileged Documents.

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Inadvertent production of any document or information that a Party later claims

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should not have been produced because of a privilege, including but not limited to

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attorney-client or work product privilege (“Inadvertently Produced Privileged

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Document”), will not be deemed to waive any privilege. A Party may request the

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return of any Inadvertently Produced Privileged Document. A request for the return

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of an Inadvertently Produced Privileged Document shall identify the document

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inadvertently produced and the basis for withholding such document from production.

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If a Party requests the return, pursuant to this paragraph, of any Inadvertently

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Produced Privileged Document then in the custody of another party, the possessing

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party shall within three (3) days return to the requesting Party the Inadvertently

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Produced Privileged Document and all copies thereof and shall not make use of such

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documents or information in this proceeding or otherwise. The Party returning such

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material may then move the Court for an order compelling production of the

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documents or information, but said party shall not assert as a ground for entering such

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an order the fact or circumstances of the inadvertent production.

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12.0 Miscellaneous.
12.1 Right to Further Relief: Nothing in this Protective 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
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[PROPOSED] PROTECTIVE ORDER

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

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

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

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

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Order.

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IT IS SO ORDERED.

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DATED: 2/8/2017

_____________________________________
ALEXANDER F. MACKINNON
UNITED STATES MAGISTRATE JUDGE

Hunton & Williams LLP
550 S. Hope Street
Suite 2000
Los Angeles, California 90071

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[PROPOSED] PROTECTIVE ORDER

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Exhibit A

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Agreement To Be Bound By Protective Order

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I, ___________________, do solemnly swear that I am fully familiar with the

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terms of the Stipulated Protective Order entered in Gregory D. White v. Lowe’s Home

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Centers, LLC, Case No. 2:16-cv-07214-JFW (AFMx), pending in the Central District

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of California, and hereby agree to comply with and be bound by the terms and

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conditions of the Stipulated Protective Order unless and until modified by further

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order of the Parties or this Court. I hereby consent to the jurisdiction of said Court for

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purposes of enforcing this Protective Order.

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Signature:

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Printed Name:

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Dated:

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EXHIBIT A – STIPULATED PROTECTIVE ORDER