Sonia Perez v. The Kroger Co., et al

Filing 61

ORDER GRANTING STIPULATED PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg. re Stipulation for Protective Order 57 . (See Order for Further Details) (kl)

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1 2 3 4 5 6 7 Bevin A. Pike (SBN 221936) Robert K. Friedl (SBN 134947) Trisha K. Monesi (SBN 303512) Capstone Law APC 1875 Century Park East, Suite 1000 Los Angeles, California 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 Attorneys for Plaintiff SONIA PEREZ 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 SONIA PEREZ, individually, and on behalf of a class of similarly situated individuals, 15 16 17 18 v. THE KROGER CO., an Ohio corporation; and DOES 1-10, inclusive, Defendant. Hon. Otis D. Wright, II ORDER GRANTING STIPULATED PROTECTIVE ORDER Plaintiff, 14 Case No.: 2:17-cv-2448 ODW (AGRx) Complaint Filed: March 2, 2017 Trial Date: None Set 19 20 21 22 23 24 25 26 27 28 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER The Court, having considered the Parties’ Stipulated Amended Protective 1 2 Order, all the papers filed in connection and for good cause appearing, hereby 3 GRANTS the Stipulation, and ORDERS the following: 4 5 6 1. A. PURPOSES AND LIMITATIONS Discovery in this Action is likely to involve production of confidential, 7 proprietary, or private information for which special protection from public disclosure 8 and from use for any purpose other than prosecuting this Action may be warranted. 9 Accordingly, Plaintiff Sonia Perez and Defendant The Kroger Co. (collectively, “the 10 Parties”) hereby stipulate to and petition the Court to enter the following Stipulated 11 Protective Order. 12 The Parties acknowledge that this Order does not confer blanket protections on 13 all disclosures or responses to discovery and that the protection it affords from public 14 disclosure and use extends only to the limited information or items that are entitled to 15 confidential treatment under the applicable legal principles. The Parties further 16 acknowledge, as set forth in Section 12.3 below, that this Stipulated Protective Order 17 does not entitle them to file confidential information under seal; Civil Local Rule 79- 18 5 sets forth the procedures that must be followed and the standards that will be 19 applied when a Party seeks permission from the Court to file material under seal. 20 B. GOOD CAUSE STATEMENT 21 This action is likely to involve sales and pricing information, profit and cost 22 information, market research and analysis, trade secrets, and other valuable research, 23 development, commercial, financial, and/or proprietary information for which special 24 protection from public disclosure and from use for any purpose other than prosecution 25 of this Action is warranted. Such confidential and proprietary materials and 26 information consist of, among other things, confidential business or financial 27 information, information regarding confidential business practices, or other 28 confidential research, development, or commercial information (including Page 1 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 information implicating privacy rights of third parties), information otherwise 2 generally unavailable to the public, or which may be privileged or otherwise protected 3 from disclosure under state or federal statutes, court rules, case decisions, or common 4 law. Accordingly, to expedite the flow of information, to facilitate the prompt 5 resolution of disputes over confidentiality of discovery materials, to adequately 6 protect information the Parties are entitled to keep confidential, to ensure that the 7 Parties are permitted reasonable necessary uses of such material in preparation for and 8 in the conduct of trial, to address their handling at the end of the litigation, and serve 9 the ends of justice, a protective order for such information is justified in this matter. It 10 is the intent of the Parties that information will not be designated as confidential for 11 tactical reasons and that nothing be so designated without a good faith belief that it 12 has been maintained in a confidential, non-public manner, and there is good cause 13 why it should not be part of the public record of this case. 14 2. 15 16 17 18 19 DEFINITIONS 2.1 Action: the pending federal court action titled Perez, et al. v. The Kroger Co., et al., Case No. 2:17-cv-2448 ODW (AGRx). 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 20 how it is generated, stored, or maintained) or tangible things that qualify for 21 protection under Federal Rule of Civil Procedure 26(c), and as specified above in the 22 Good Cause Statement. 23 24 25 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 26 items that it produces in disclosures or in responses to discovery as 27 “CONFIDENTIAL.” 28 2.6 Disclosure or Discovery Material: all items or information, regardless of Page 2 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 the medium or manner in which it is generated, stored, or maintained (including, 2 among other things, testimony, transcripts, and tangible things), that are produced or 3 generated in disclosures or responses to discovery in this Action. 4 2.7 Expert: a person with specialized knowledge or experience in a matter 5 pertinent to the Action who has been retained by a Party or its counsel to serve as an 6 expert witness or as a consultant in this Action. 7 2.8 House Counsel: attorneys who are employees of a Party to this Action. 8 House Counsel does not include Outside Counsel of Record or any other outside 9 counsel. 10 11 12 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 13 to this Action but are retained to represent or advise a Party to this Action and have 14 appeared in this Action on behalf of that Party or are affiliated with a law firm that 15 has appeared on behalf of that Party, and includes support staff. 16 2.11 Party: any party to this Action, including all of its officers, directors, 17 employees, consultants, retained experts, and Outside Counsel of Record (and their 18 support staffs). 19 20 21 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 2.13 Professional Vendors: persons or entities that provide litigation support 22 services (e.g., photocopying, videotaping, translating, preparing exhibits or 23 demonstratives, and organizing, storing, or retrieving data in any form or medium) 24 and their employees and subcontractors. 25 26 27 28 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. Page 3 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of the trial 8 judge. This Order does not govern the use of Protected Material at trial. 9 4. DURATION Even after final disposition of this Action, the confidentiality obligations 10 11 imposed by this Order shall remain in effect until a Designating Party agrees 12 otherwise in writing or a court order otherwise directs. Final disposition shall be 13 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 14 or without prejudice; and (2) final judgment herein after the completion and 15 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 16 including the time limits for filing any motions or applications for extension of time 17 pursuant to applicable law. 18 5. 19 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 20 Each Party or Non-Party that designates information or items for protection under 21 this Order must take care to limit any such designation to specific material that 22 qualifies under the appropriate standards. The Designating Party must designate for 23 protection only those parts of material, documents, items, or oral or written 24 communications that qualify so that other portions of the material, documents, 25 items, or communications for which protection is not warranted are not swept 26 unjustifiably within the ambit of this Order. 27 28 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper Page 4 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 purpose (e.g., to unnecessarily encumber the case development process or to impose 2 unnecessary expenses and burdens on other Parties) may expose the Designating 3 Party to sanctions. 4 If it comes to a Designating Party’s attention that information or items that it 5 designated for protection do not qualify for protection, the Designating Party must 6 promptly notify all other Parties that it is withdrawing the inapplicable designation. 7 5.2 Manner and Timing of Designations. Except as otherwise provided in 8 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 9 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 10 under this Order must be clearly so designated before the material is disclosed or 11 produced. Designation in conformity with this Order requires: 12 (a) for information in documentary form (e.g., paper or electronic 13 documents, but excluding transcripts of depositions or other pretrial or trial 14 proceedings), that the Producing Party affix at a minimum, the legend 15 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 16 contains protected material. If only a portion or portions of the material on a page 17 qualifies for protection, the Producing Party also must clearly identify the protected 18 portion(s) (e.g., by making appropriate markings in the margins). 19 A Party or Non-Party that makes original documents available for inspection 20 need not designate them for protection until after the inspecting Party has indicated 21 which documents it would like copied and produced. During the inspection and 22 before the designation, all of the material made available for inspection shall be 23 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 24 documents it wants copied and produced, the Producing Party must determine which 25 documents, or portions thereof, qualify for protection under this Order. Then, 26 before producing the specified documents, the Producing Party must affix the 27 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 28 portion or portions of the material on a page qualifies for protection, the Producing Page 5 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 2 markings in the margins). (b) 3 testimony given in depositions and the transcripts and video recordings 4 of depositions must be treated as “CONFIDENTIAL” for a period of 30 days after 5 receipt of the final deposition transcript (or such later time as agreed to by the 6 Parties) to allow time for the Parties to designate by page and line number those 7 portions of the testimony that are to be treated as “CONFIDENTIAL.” If any part 8 of a deposition recorded by videographic means is designated as 9 “CONFIDENTIAL,” the recording storage medium and its container shall be so 10 labeled. (c) 11 for information produced in some form other than documentary and for 12 any other tangible items, that the Producing Party affix in a prominent place on the 13 exterior of the container or containers in which the information is stored the legend 14 “CONFIDENTIAL.” If only a portion or portions of the information warrants 15 protection, the Producing Party, to the extent practicable, shall identify the protected 16 portion(s). 5.3 17 Inadvertent Failures to Designate. If timely corrected, an inadvertent 18 failure to designate qualified information or items does not, standing alone, waive 19 the Designating Party’s right to secure protection under this Order for such material. 20 Upon timely correction of a designation, the Receiving Party must make reasonable 21 efforts to assure that the material is treated in accordance with the provisions of this 22 Order. 23 6. 24 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 25 designation of confidentiality at any time that is consistent with the Court’s 26 Scheduling Order. 27 28 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37-1 et seq. Page 6 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER 6.3 1 The burden of persuasion in any such challenge proceeding shall be on 2 the Designating Party. Frivolous challenges, and those made for an improper 3 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 4 Parties) may expose the Challenging Party to sanctions. Unless the Designating 5 Party has waived or withdrawn the confidentiality designation, all Parties shall 6 continue to afford the material in question the level of protection to which it is 7 entitled under the Producing Party’s designation until the Court rules on the 8 challenge. 9 7. 10 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 11 disclosed or produced by another Party or by a Non-Party in connection with this 12 Action only for prosecuting, defending, or attempting to settle this Action. Such 13 Protected Material may be disclosed only to the categories of persons and under the 14 conditions described in this Order. When the Action has been terminated, a 15 Receiving Party must comply with the provisions of section 13 below (FINAL 16 DISPOSITION). 17 Protected Material must be stored and maintained by a Receiving Party at a 18 location and in a secure manner that ensures that access is limited to the persons 19 authorized under this Order. 20 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 21 otherwise ordered by the Court or permitted in writing by the Designating Party, a 22 Receiving Party may disclose any information or item designated 23 “CONFIDENTIAL” only to: 24 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 25 as employees of said Outside Counsel of Record to whom it is reasonably necessary 26 to disclose the information for this Action; 27 28 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; Page 7 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER (c) 1 Experts (as defined in this Order) of the Receiving Party to whom 2 disclosure is reasonably necessary for this Action and who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (d) the Court and its personnel; 5 (e) court reporters and their staff; 6 (f) professional jury or trial consultants, mock jurors, and Professional 7 Vendors to whom disclosure is reasonably necessary for this Action and who have 8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) 9 10 the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses, and attorneys for witnesses, in the 11 12 Action to whom disclosure is reasonably necessary provided they will not be 13 permitted to keep any confidential information unless they sign the 14 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 15 agreed by the Designating Party or ordered by the Court. Pages of transcribed 16 deposition testimony or exhibits to depositions that reveal Protected Material may 17 be separately bound by the court reporter and may not be disclosed to anyone except 18 as permitted under this Stipulated Protective Order; and (i) 19 any mediator or settlement officer, and their supporting personnel, 20 mutually agreed upon by any of the Parties engaged in settlement discussions. 21 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 22 OTHER LITIGATION 23 If a Party is served with a subpoena or a court order issued in other litigation 24 that compels disclosure of any information or items designated in this Action as 25 “CONFIDENTIAL,” that Party must: 26 27 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 28 Page 8 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER (b) 1 promptly notify in writing the party who caused the subpoena or order 2 to issue in the other litigation that some or all of the material covered by the 3 subpoena or order is subject to this Protective Order. Such notification shall include 4 a copy of this Stipulated Protective Order; and (c) 5 6 cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 7 8 the subpoena or court order shall not produce any information designated in this 9 action as “CONFIDENTIAL” before a determination by the court from which the 10 subpoena or order issued, unless the Party has obtained the Designating Party’s 11 permission. The Designating Party shall bear the burden and expense of seeking 12 protection in that court of its confidential material and nothing in these provisions 13 should be construed as authorizing or encouraging a Receiving Party in this Action to 14 disobey a lawful directive from another court. 15 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 16 PRODUCED IN THIS ACTION 17 (a) The terms of this Order are applicable to information produced by a 18 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 19 produced by Non-Parties in connection with this Action is protected by the remedies 20 and relief provided by this Order. Nothing in these provisions should be construed 21 as prohibiting a Non-Party from seeking additional protections. 22 (b) In the event that a Party is required, by a valid discovery request, to 23 produce a Non-Party’s confidential information in its possession, and the Party is 24 subject to an agreement with the Non-Party not to produce the Non-Party’s 25 confidential information, then the Party shall: 26 (1) promptly notify in writing the Requesting Party and the Non- 27 Party that some or all of the information requested is subject to a confidentiality 28 agreement with a Non-Party; Page 9 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER (2) 1 promptly provide the Non-Party with a copy of the Stipulated 2 Protective Order in this Action, the relevant discovery request(s), and a reasonably 3 specific description of the information requested; and (3) 4 5 make the information requested available for inspection by the Non-Party, if requested. (c) 6 If the Non-Party fails to seek a protective order from this Court within 7 14 days of receiving the notice and accompanying information, the Receiving Party 8 may produce the Non-Party’s confidential information responsive to the discovery 9 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 10 not produce any information in its possession or control that is subject to the 11 confidentiality agreement with the Non-Party before a determination by the Court. 12 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 13 of seeking protection in this Court of its Protected Material. 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 15 16 Protected Material to any person or in any circumstance not authorized under this 17 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 18 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 19 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 20 persons to whom unauthorized disclosures were made of all the terms of this Order, 21 and (d) request such person or persons to execute the “Acknowledgment and 22 Agreement to Be Bound” that is attached hereto as Exhibit A. 23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other protection, 27 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 28 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure Page 10 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 may be established in an e-discovery order that provides for production without prior 2 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 3 Parties reach an agreement on the effect of disclosure of a communication or 4 information covered by the attorney-client privilege or work product protection, the 5 Parties may incorporate their agreement in the stipulated protective order submitted to 6 the Court. 7 12. 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 8 9 MISCELLANEOUS 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 10 11 Protective Order no Party waives any right it otherwise would have to object to 12 disclosing or producing any information or item on any ground not addressed in this 13 Stipulated Protective Order. Similarly, no Party waives any right to object on any 14 ground to use in evidence of any of the material covered by this Protective Order. 15 12.3 Filing Protected Material. A Party that seeks to file under seal any 16 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 17 only be filed under seal pursuant to a court order authorizing the sealing of the 18 specific Protected Material at issue. If a Party’s request to file Protected Material 19 under seal is denied by the Court, then the Receiving Party may file the information in 20 the public record unless otherwise instructed by the Court. 21 13. FINAL DISPOSITION 22 After the final disposition of this Action, as defined in paragraph 4, within 60 23 days of a written request by the Designating Party, each Receiving Party must return 24 all Protected Material to the Producing Party or destroy such material. As used in this 25 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 26 summaries, and any other format reproducing or capturing any of the Protected 27 Material. Whether the Protected Material is returned or destroyed, the Receiving 28 Party must submit a written certification to the Producing Party (and, if not the same Page 11 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 2 (by category, where appropriate) all the Protected Material that was returned or 3 destroyed and (2) affirms that the Receiving Party has not retained any copies, 4 abstracts, compilations, summaries or any other format reproducing or capturing any 5 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 6 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 7 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 8 reports, attorney work product, and consultant and expert work product, even if such 9 materials contain Protected Material. Any such archival copies that contain or 10 constitute Protected Material remain subject to this Protective Order as set forth in 11 Section 4 (DURATION). 12 14. 13 measures including, without limitation, contempt proceedings and/or monetary 14 sanctions. Any violation of this Order may be punished by any and all appropriate 15 16 17 18 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 19 20 21 22 23 24 DATED: March 13, 2018 _____ ______________________________ Hon. Alicia G. Rosenberg United States Magistrate Judge 25 26 27 28 Page 12 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, ______________________________ [print or type full name], of 5 _____________________________________ [print or type full address], declare 6 under penalty of perjury that I have read in its entirety and understand the Stipulated 7 Protective Order that was issued by the United States District Court for the Central 8 District of California on _____________ [print or type date] in the case of Perez, et 9 al. v. The Kroger Co., et al., Case No. 2:17-cv-2448 ODW (AGRx). I agree to 10 comply with and to be bound by all the terms of this Stipulated Protective Order and I 11 understand and acknowledge that failure to so comply could expose me to sanctions 12 and punishment in the nature of contempt. I solemnly promise that I will not disclose 13 in any manner any information or item that is subject to this Stipulated Protective 14 Order to any person or entity except in strict compliance with the provisions of this 15 Order. I further agree to submit to the jurisdiction of the United States District Court 16 for the Central District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint ______________________________ 19 [print or type full name] of _____________________________________ [print or 20 type full address and telephone number] as my California agent for service of process 21 in connection with this action or any proceedings related to enforcement of this 22 Stipulated Protective Order. 23 24 Date: ______________________________ 25 City and State where sworn and signed: ______________________________ 26 27 Printed name: ______________________________ 28 Signature: ______________________________ Page 13 Case No.: 2:17-cv-2448 ODW (AGRx) ORDER GRANTING STIPULATED PROTECTIVE ORDER

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