Fletcher Dozier, Jr. v. Walmart Inc.

Filing 73

PROTECTIVE ORDER by Magistrate Judge Pedro V. Castillo re Stipulation for Protective Order 72 . (see document for details) (hr)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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FLETCHER DOZIER, JR., individually
and on behalf of all others similarly
situated,

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Plaintiff,

Case No. 2:20-CV-05286-AB-PVCx
STIPULATED LIMITED
PROTECTIVE ORDER

v.

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WALMART INC., a Delaware
corporation, formerly known as WalMart Stores, Inc.,

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Defendant.

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1.

Purposes and Limitations

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On March 5, 2021, the Court issued an order granting Walmart’s motion to

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dismiss plaintiff’s first amended complaint. (Dkt. No. 70.) The order granted

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Walmart’s motion and, out of an abundance of caution, granted plaintiff leave to

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amend so he may attempt to plead fact sufficient to establish standing. The Court

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expressed concern over plaintiff’s investigation into his claims and the class aspects

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of this case, and ordered the parties to exchange some informal discovery regarding

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whether Walmart complied with the Regulation vis-à-vis plaintiff, and Walmart’s

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policies regarding tire registration during the relevant period.

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The informal information exchange ordered by the Court will involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than as ordered

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by the Court is warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the

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following Stipulated Limited Protective Order. The parties acknowledge that this

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

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and that the protection it affords from public disclosure and use extends only to the

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

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applicable legal principles.

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2.

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Good Cause Statement
The informal information exchange ordered by the Court will involve

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production of involve trade secrets or confidential information,

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commercial, financial, technical and/or proprietary information for which special

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protection from public disclosure and from use for any purpose other than as ordered

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by the Court is warranted. Such confidential materials and information consist of,

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among other things, confidential business or financial information, information

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regarding confidential business practices, or other confidential research,

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development, or commercial information (including information implicating privacy

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development,

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rights of third parties), information otherwise generally unavailable to the public, or

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which may be privileged or otherwise protected from disclosure under state or federal

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statutes, court rules, case decisions, or common law. Accordingly, to expedite the

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flow of information, to facilitate the prompt resolution of disputes over

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confidentiality of materials exchanged informally, to adequately protect information

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the parties are entitled to keep confidential, to ensure that the parties are permitted

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reasonable necessary uses of such material to address the comments made by the

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Court in its March 5, 2021 order, and serve the ends of justice, a protective order for

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such information is justified in this matter. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and that nothing

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be so designated without a good faith belief that it has been maintained in a

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confidential, non-public manner, and there is good cause why it should not be part of

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the public record of this case.

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3.

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Definitions
3.1

“Action” shall mean this pending federal lawsuit, entitled Fletcher

Dozier, Jr. v. Walmart Inc., Case No. 2:20-cv-05286-AB-PVC.
3.2

“CONFIDENTIAL” Information or Items shall mean information

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(regardless of how it is generated, stored, or maintained) or tangible things that

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qualify for protection under Federal Rule of Civil Procedure 26(c), including, among

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other things, confidential business or financial information, information regarding

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confidential business practices, or other confidential research, development, or

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commercial information (including information implicating privacy rights of third

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parties), information otherwise generally unavailable to the public, or which may be

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privileged or otherwise protected from disclosure under state or federal statutes, court

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rules, case decisions, or common law.

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3.3

“Counsel” shall mean Outside Counsel of Record and House Counsel

(as well as their support staff).

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3.4

“Designating Party” shall mean a Party that designates information or

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items that it produces pursuant to this Stipulated Protective Order as

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“CONFIDENTIAL.”

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3.5

“Expert” shall mean a person with specialized knowledge or experience

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

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to serve as an expert witness or as a consultant in this Action.

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3.6

“House Counsel” shall mean attorneys who are employees of a Party to

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this Action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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3.7

“Outside Counsel of Record” shall mean attorneys who are not

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employees of a Party but are retained to represent or advise a Party and have appeared

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in this Action on behalf of that party or are affiliated with a law firm that has appeared

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on behalf of that party, and includes support staff.

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3.8

“Party” shall mean any party to this Action, including all of its officers,

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directors, employees, consultants, retained experts, and Outside Counsel of Record

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(and their support staffs).

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3.9

“Protected Material” shall mean any information or tangible thing

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produced by a Party pursuant to this Stipulated Protective Order and designated as

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“CONFIDENTIAL.”

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3.10 “Receiving Party” shall mean a Party that receives Protected Material

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from a Designating Party.

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4.

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Scope
4.1

The protections conferred by this Stipulated Protective Order cover not

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only 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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4.2

None of the information or documents provided pursuant to this

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Stipulated Protective Order, in whatever form, constitutes an admission by any Party,

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a waiver of any privilege or proper objection that may apply, or may be used in any

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proceeding without the express permission of the Designating Party unless it is

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otherwise publicly available or is obtained in the course of discovery in the Action,

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subject to any applicable protective order.

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4.3

Nothing in this Stipulated Protective Order shall prevent any party from

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obtaining any relevant and non-privileged document or writing in discovery.

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However, no information obtained by a Party pursuant to this Stipulated Protective

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Order may be disclosed in any discovery request. Further, nothing in this Stipulated

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Protective Order shall prevent any Party from submitting to the court for in camera

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review any document or writing produced under this Stipulated Protective Order if,

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in a subsequent discovery dispute, the other party denies that such document or

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writing exists.

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5.

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Duration
5.1

The confidentiality obligations imposed by this Stipulated Protective

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Order shall remain in effect until a Designated Party agrees otherwise in writing or a

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court order otherwise directs.

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6.

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Designating Protected Material
6.1

Information, documents, or tangible things that qualify for protection

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under this Stipulated Protective Order must be clearly so designated before the

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material is disclosed or produced.

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6.2

If timely corrected, an inadvertent failure to designate qualified

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information or items does not, standing alone, waive the Designating Party’s right to

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secure protection under this Stipulated Protective Order for such material. Upon

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timely correction of a designation, the Receiving Party must make reasonable efforts

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to assure that the material is treated in accordance with the provisions of this

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Stipulated Protective Order.

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7.

Access To and Use of Protected Material
7.1

A Receiving Party may use Protected Material that is disclosed or

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produced by another Party pursuant to this Stipulated Protective Order solely for the

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purposes stated in the Court’s March 5, 2021 Order (Dkt. No. 70.)

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7.2

Protected Material may be disclosed only to the categories of persons

and under the conditions described in this Stipulated Protective Order.

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7.3

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Receiving

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“CONFIDENTIAL” only to:

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(a)

Unless otherwise permitted in writing by the Designating Party, a
Party

may

disclose

any

information

or

item

designated

the Receiving Party’s Outside Counsel of Record in this Action,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this Action;

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(b)

the officers, directors, and employees (including House Counsel)

of the Receiving Party to whom disclosure is reasonably necessary for this Action;

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(c)

Experts (as defined in this Stipulated Protective Order) of the

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Receiving Party to whom disclosure is reasonably necessary for this Action and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

the author or recipient of a document containing the information

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

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(g)

any mediator 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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7.4

Under no circumstances shall access to Protected Material be granted to

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any employee of any competitor of Walmart, or any person who plans to, expects to,

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or reasonably anticipates to be employed by or affiliated with a competitor of

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Walmart regarding research, development, production, or sales of tires within the

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next two years.

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8.

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Protected Material Subpoenaed or Ordered Produced by a Court
8.1

If a Party is served with a subpoena or a court order issued in 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 Stipulated Protective Order. Such notification

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shall include 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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8.2

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

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with 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.

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Unauthorized Disclosure of Protected Material
9.1

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

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

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

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notify in writing the Designating Party of the unauthorized disclosures, (b) use its

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best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform

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the person or persons to whom unauthorized disclosures were made of all the terms

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of this Stipulated Protective Order, and (d) request such person or persons to execute

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the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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Inadvertent Production of Privileged or Otherwise Protected Material

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10.1 When a Designating Party gives notice to Receiving Parties that certain

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

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). Pursuant to Federal Rule of Evidence (FRE) 502(d) and (e),

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in so far as the parties reach an agreement on the effect of disclosure of a

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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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11.

Return of Protected Material

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11.1 Within thirty (30) days of final termination of the Action (the earlier of

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execution of a settlement agreement, entry of a final judgment or termination of final

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appeal), counsel for record for each party shall either assemble and return to counsel

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of record for Producing Party all Protected Material or certify in writing to counsel

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of record for Producing Party that all Protected Material has been destroyed.

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12.

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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.

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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 this

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

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

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13.

Violation
13.1 Any violation of this Order may be punished by appropriate measures

including, without limitation, contempt proceedings and/or monetary sanctions.

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FOR GOOD CAUSE HAVING BEEN SHOWN BY THE PARTIES’
STIPULATION, IT IS SO ORDERED

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DATED: April 13, 2021

_____________________________
Hon. Pedro V. Castillo
United States Magistrate Judge

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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

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

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

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District of California on [date] in the case of Fletcher Dozier, Jr. v. Walmart Inc.,

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(Case No. 2:20-cv-05286-AB-PVC). I agree to comply with and to be bound by all

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the terms of this Stipulated Protective Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any information

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

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except in strict compliance with the provisions of this Order. I further agree to submit

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to the jurisdiction of the United States District Court for the Central District of

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California for enforcing the terms of this Stipulated Protective Order, even if such

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enforcement proceedings occur after termination of this action. I hereby appoint

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__________________________

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Stipulated Protective

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Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

_____________________________

[print

[print

or

or

type

type

full

full

name],

name]

of

of

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Printed name: _______________________________

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Signature: _________________________________
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