Teianna Richardson v. Wal Mart Associates Inc. et al

Filing 39

STIPULATED CONFIDENTIALITY ORDER by Magistrate Judge Alicia G. Rosenberg re, STIPULATION for Discovery as to Confidentiality Order 33 . (see document for details) (hr)

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1 2 3 4 5 6 7 Tiffany S. Hansen (SBN 292850) thansen@constangy.com Cody Lee Saal (SBN 286041) csaal@constangy.com CONSTANGY BROOKS, SMITH & PROPHETE, LLP 601 Montgomery St., Suite 350 San Francisco, CA 94111 Tel: (949) 743-3979 Attorneys for Defendant WAL-MART ASSOCIATES, INC. 8 UNITED STATES DISTRICT COURT 9 10 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 11 TEIANNA RICHARDSON, 12 Plaintiff, 13 14 15 16 CASE NO: 2:23-CV-9118-KK (AGRx) STIPULATED CONFIDENTIALITY ORDER vs. WAL-MART ASSOCIATES, INC., and DOES 1 to 100, inclusive, Defendants. NOTE CHANGES MADE BY COURT Complaint Filed: September 20, 2023 Trial Date: Not set 17 18 PURPOSE AND LIMITATIONS 19 Discovery in this action is likely to involve production of confidential, 20 proprietary, or private information for which special protection from public disclosure 21 and from use for any purpose other than prosecuting this litigation may be warranted. 22 Accordingly, the parties hereby stipulate to and petition the Court to enter the 23 following Stipulated Confidentiality Order. The parties acknowledge that this Order 24 does not confer blanket protections on all disclosures or responses to discovery and 25 that the protection it affords from public disclosure and use extends only to the limited 26 information or items that are entitled to confidential treatment under the applicable 27 legal principles. The parties further acknowledge, as set forth in Paragraph 23, below, 28 that this Stipulated Confidentiality Order does not entitle them to file confidential 1 CONFIDENTIALITY ORDER 1 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 2 followed and the standards that will be applied when a party seeks permission from 3 the court to file material under seal. GOOD CAUSE STATEMENT 4 5 This action is likely to involve the exchange of confidential, private and/or 6 proprietary information for which special protection from public disclosure and from 7 use for any purpose other than prosecution of this action is warranted. Such 8 information may consist of, but is not limited to, the following: Plaintiffs’ confidential 9 and private medical records, Walmart’s confidential and private personnel records 10 related to current and/or former employees, confidential business or financial 11 information, information regarding confidential business practices, commercial 12 information (including information implicating privacy rights of third parties), and/or 13 other information generally unavailable to the public or which may be privileged or 14 otherwise protected from disclosures under state or federal statutes, court rules, case 15 decisions or common law. Accordingly, to expedite the flow of information, to 16 facilitate the prompt resolution of disputes over confidentiality of discovery materials, 17 to adequately protect information the parties are entitled to keep confidential, to 18 ensure that the parties are permitted reasonable necessary uses of such material in 19 preparation for and in the conduct of trial, to address their handling at the end of 20 litigation, and serve the ends of justice, a confidentiality order covering such 21 information is justified in this matter. It is the intent of the parties that information 22 will not be designated as confidential for tactical reasons and that nothing be so 23 designated without a good faith belief that it has been maintained in a confidential, 24 non-public manner, and there is good cause why it should not be part of the public 25 record of this case. 26 // 27 // 28 // 2 CONFIDENTIALITY ORDER 1 Accordingly, the Parties agree as follows: 2 1. This Order shall govern the disclosure of materials designated as 3 Confidential Material in this litigation. Confidential Material, as used in this Order, 4 shall refer to any document or item designated as Confidential or Highly Confidential 5 – Attorneys’ Eyes Only, including but not limited to, documents or items produced 6 during discovery, all copies thereof, and the information contained in such material. 7 Nothing in this Order shall require any party to produce any specific documents or 8 category of documents which a party deems inappropriate for production. 9 Definitions of Confidential Material 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Confidential Material, as used in this Order, consists of the following materials and categories of materials: a. Materials relating to any privileged, confidential, or nonpublic information, including, but not limited to, trade secrets, research, design, development, financial, technical, marketing, planning, personal, or commercial information, as such terms are used in the Federal Rules of Civil Procedure (Fed. R. Civ.) and any applicable case law interpreting Fed. R. Civ. 26(c)(1)(G) contracts; non-public compilations of retail prices; proprietary information; vendor agreements; personnel files; claim/litigation information; and nonpublic policies and procedures shall be deemed Confidential. b. Materials containing corporate trade secrets, nonpublic research and development data, including, but not limited to, cost data, pricing formulas, inventory management programs, and other sales or business information not known to the public; information obtained from a non-party pursuant to a non-disclosure agreement; and customerrelated Protected Data shall be deemed Highly Confidential – Attorneys’ Eyes Only. c. Protected Data shall refer to any information that a party believes in good faith to be subject to federal, state or foreign data protection laws or other privacy obligations. Examples of such data protection laws include but are not limited to The Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. (financial information); and, The Health Insurance Portability and Accountability Act and the regulations thereunder, 45 CFR Part 160 and Subparts A and E of Part 164 (medical information). Certain Protected Data may compel alternative or additional protections beyond those afforded Highly Confidential – Attorneys’ Eyes Only material, in which event the parties shall meet and confer in 3 CONFIDENTIALITY ORDER good faith, and, if unsuccessful, shall move the Court for appropriate relief. 1 2 3 4 The parties shall not designate as confidential information that is already public knowledge. 3. The parties agree that such Confidential Material as described in 5 paragraph 2 should be given the protection of an order of this Court to prevent injury 6 through disclosure to persons other than those persons involved in the prosecution or 7 defense of this litigation. 8 Procedure for Designating Information as Confidential 9 4. To designate information as confidential, the producing party shall mark 10 Confidential Material with the legend “CONFIDENTIAL” or “HIGHLY 11 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Parties shall submit confidential 12 discovery responses, such as answers to interrogatories or answers to requests for 13 admissions, in a separate document stamped with the appropriate legend designating 14 those responses as Confidential Material. The Receiving Party may make copies of 15 Confidential Material and such copies shall become subject to the same protections 16 as the Confidential Material from which those copies were made. 17 18 19 20 21 22 23 24 25 26 27 28 a. Information on a disk or other electronic format (e.g., a native format production) may be designated confidential by marking the storage medium itself (or the native file’s title) with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The Receiving Party shall mark any hard-copy printouts and the storage medium of any permissible copies of such electronic material with the corresponding legend contained on the original and such copies shall become subject to the same protections, as the Confidential Material from which those copies were made. b. Information disclosed at any deposition of a party taken in this action may be designated by the party as confidential by indicating on the record at the deposition that the information is confidential and subject to the provisions of this Order. Alternatively, the party may designate 4 CONFIDENTIALITY ORDER information disclosed at the deposition as confidential by notifying the court reporter and other parties in writing, within fifteen (15) business days of receipt of the transcript, of the specific pages and lines of the transcript which are designated as confidential. The parties may agree to a reasonable extension of the 15-business-day period for designation. Designations of transcripts will apply to audio, video, or other recordings of the testimony. During such 15business-day period, the entire transcript shall receive confidential treatment. Upon such designation, the court reporter and each party shall affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” legend to the designated pages and segregate them as appropriate. 1 2 3 4 5 6 7 8 9 10 11 5. A producing party may change the confidentiality designation of 12 materials it has produced, consistent with the court’s scheduling order, as follows: (1) 13 The producing party must give the receiving parties notice of the change by 14 identifying the documents or information at issue. Once notice is given, the receiving 15 party must make good-faith efforts to ensure that the documents or information are 16 accorded treatment under the new designation. (2) Within a reasonable period after 17 giving notice, the producing party must reproduce the documents or information in a 18 format that contains the new designation. (3) If such information has been disclosed 19 to persons not qualified pursuant to paragraph(s) (12-13) below, the party who 20 disclosed such information shall (a) take reasonable efforts to retrieve previously 21 disclosed Confidential Material; (b) advise such persons that the material is 22 Confidential; and (c) give the producing party written assurance that steps (a) and (b) 23 have been completed. 24 Data Security 25 6. The Parties agree to provide adequate security to protect data produced 26 by the other party(ies) or by non-parties. This includes secure data storage systems, 27 established security policies, and security training for employees, contractors and 28 experts. Adequate security also includes such measures as data encryption in transit, 5 CONFIDENTIALITY ORDER 1 data encryption at rest, data access controls, and physical security, whether 2 hosted/outsourced to a vendor or on premises. At a minimum, any receiving party 3 subject to the terms of this Confidentiality Order, will provide reasonable measures 4 to protect non-client data consistent with the American Bar Association Standing 5 Committee on Ethics and Professional Responsibility, Formal Opinion 477R. 6 Clawback Provisions 7 7. The production of privileged or work-product protected documents, 8 electronically stored information (ESI) or information, whether inadvertent or 9 otherwise, is not a waiver of the privilege or protection from discovery in this case or 10 11 in any other federal or state proceeding. 8. This Order shall be interpreted to provide the maximum protection 12 allowed by Federal Rule of Evidence (FRE) 502(d) and shall be enforceable and 13 granted full faith and credit in all other state and federal proceedings by 28 U.S. Code 14 § 1738. In the event of any subsequent conflict of law, the law that is most protective 15 of privilege and work product shall apply. 16 9. Nothing contained herein is intended to or shall serve to limit a party’s 17 right to conduct a review of documents, ESI or information (including metadata) for 18 relevance, responsiveness and/or segregation of privileged and/or protected 19 information before production. 20 10. If the receiving party has reason to believe that a produced document or 21 other information may reasonably be subject to a claim of privilege, then the receiving 22 party shall immediately sequester the document or information, cease using the 23 document or information and cease using any work product containing the 24 information, and shall inform the producing party of the beginning BATES number 25 of the document or, if no BATES number is available, shall otherwise inform the 26 producing party of the information. 27 28 11. A producing party must give written notice to any receiving party asserting a claim of privilege, work-product protection, or other ground for reclaiming 6 CONFIDENTIALITY ORDER 1 documents or information (a “clawback request”). After a clawback request is 2 received, the receiving party shall immediately sequester the document (if not already 3 sequestered) and shall not review or use that document, or any work product 4 containing information taken from that document, for any purpose. The parties shall 5 meet and confer regarding any clawback request. 6 Who May Receive Confidential and Highly Confidential Information 7 12. Confidential Material. Any Confidential Material and the information 8 contained therein shall be disclosed only to the Court, its staff, in-house counsel and 9 outside counsel of record for each party, and also shall be disclosed on a need-to- 10 know basis only to the parties, counsel’s staff personnel, employees of a party to 11 whom disclosure is necessary in connection with the preparation for and trial of this 12 action, and any witnesses in the case (including consulting and testifying experts) as 13 may from time to time reasonably be necessary in prosecution or defense of this 14 action. 15 13. Highly Confidential—Attorneys’ Eyes Only Material. Material and 16 information designated as “Highly Confidential—Attorneys’ Eyes Only” shall only 17 be disclosed to the Court, its staff, in-house and outside counsel of record for each 18 party, the secretarial, clerical, and paralegal staff of each, and consulting and 19 testifying experts retained by a party in this action. 20 13a. This Order does not govern or restrict the use of Confidential or Highly 21 Confidential material at trial. Any use of such material at trial shall be governed by 22 the orders of the trial judge. 23 14. Restriction on Disclosure to Direct Competitors. Notwithstanding the 24 foregoing, Confidential Material shall not be disclosed to any current or former 25 employees of, or current or former consultants, advisors, or agents of, a direct 26 competitor of any party named in the litigation. If a Receiving Party is in doubt about 27 whether a particular entity is a direct competitor of a party named in this lawsuit, then 28 before disclosing any Confidential Material to a current or former employee, 7 CONFIDENTIALITY ORDER 1 consultant, advisor, or agent of that entity, the Receiving Party’s counsel must confer 2 with counsel for the Producing Party. 3 15. Persons Receiving Confidential Information Must Sign Exhibit A. 4 Counsel for each party shall advise all persons to whom Confidential Material is 5 disclosed pursuant to this Order of the existence of this Order and shall provide all 6 such persons (other than the Court and its staff) with a copy of this Order. Counsel 7 shall also require such persons to execute the Affidavit attached as Exhibit A, prior to 8 the disclosure of Confidential Material. 9 16. Duties in the Event of Unauthorized Disclosures. It shall be the 10 obligation of counsel, upon learning of any unauthorized disclosure or threatened 11 unauthorized disclosure of Confidential Information, or any other breach or 12 threatened breach of the provisions of this Order, to promptly notify counsel for the 13 Producing Party. The notification shall be supplemented with reasonable details of 14 the circumstances of the disclosure in order to permit the producing party to 15 understand and take appropriate steps. Each party and its counsel agree to take 16 reasonable and good-faith efforts to contain or limit any breach promptly upon 17 receiving notice of it, and to make reasonable and good-faith attempts to retrieve any 18 unauthorized disclosure of documents or information. This provision does not limit 19 the producing party’s entitlement to damages resulting from any breach of this Order. 20 Authorized Uses of Confidential Material 21 22 23 17. Confidential Material shall only be used for the purpose of litigating the above-captioned lawsuit and may not be used in other lawsuits. 18. Persons having knowledge of Confidential Material and information due 24 to their participation in the conduct of this litigation shall use such knowledge and 25 information only as permitted herein, and shall not disclose such Confidential 26 Material, their contents or any portion or summary thereof to any person(s) not 27 involved in the conduct of this litigation. 28 19. If any person having access to the Confidential Material herein shall 8 CONFIDENTIALITY ORDER 1 violate this Order, he/she may be subject to sanctions by the Court. Nothing in this 2 order prevents a party from pursuing other remedies. 3 Challenges to the Designation of Confidential Material 4 20. Any party, consistent with the court’s scheduling order, or interested 5 member of the public may move the Court to modify the designation of any 6 documents or information produced in this litigation (either to include additional 7 protection with respect to confidentiality or to remove a confidential designation). 8 Before making such a motion, the party or an interested member of the public shall 9 first attempt to resolve such dispute with the producing party’s counsel. Pending 10 resolution of any challenges to the designation of documents or information, the 11 material at issue shall continue to be treated as Confidential Material until ordered 12 otherwise by the Court. The burden shall be on the party seeking to modify the 13 designation to show that the producing party’s designation is inappropriate. 14 Withholding of Information 15 21. Non-relevant Attachments. The parties will not produce non-relevant 16 attachments that are attached to relevant emails. When an attachment is withheld, 17 either for privilege or non-responsiveness, the producing party shall produce a one- 18 page TIFF image (or PDF if production format dictates) in place of the withheld 19 attachment, 20 “Attachment Withheld-Nonresponsive” and bearing a sequential BATES number 21 within the family BATES range. If any attachment to an email contains responsive 22 content, then the cover email shall be produced for context, regardless of the cover 23 email’s responsiveness. The cover email may be redacted in part to remove sensitive 24 information, as described below. 25 22. correspondingly stating “Attachment Withheld-Privileged” or Redactions. The parties may redact (1) information that is privileged or 26 protected from discovery as work product or by reason of any other applicable 27 privilege or immunity; (2) information subject to non-disclosure obligations imposed 28 by governmental authorities, law or regulation (e.g., protected personal information); 9 CONFIDENTIALITY ORDER 1 and (3) sensitive, non-relevant information, including but not limited to personally 2 identifiable information, trade secrets, or information regarding products, data, or 3 people. Privilege redactions will state, over the redacted portion, “Redacted– 4 Privileged,” and all other redactions will state, “Redacted–Nonresponsive.” 5 Redactions of emails will not redact the names of recipients or the subject line of the 6 emails, unless the subject line is itself privileged or contains the sensitive information 7 described above, in which case only so much of the subject line will be redacted as 8 may be needed. The parties will produce redacted documents in TIFF format (or 9 searchable PDF if production format dictates; or in native format for file types that do 10 not convert well to TIFF/PDF, such as Excel files) with corresponding searchable 11 OCR text and the associated metadata for the document, ensuring the redacted content 12 is fully protected from disclosure. 13 Confidential Material In Filings, Hearings, and Trial 14 23. Confidential Material in Filings. Without written permission from the 15 Producing Party or court order secured after appropriate notice to all interested 16 persons, a party may not file Confidential Material in the public record in this action. 17 (or in any other action, such as an appeal). A party that seeks to file under seal any 18 Confidential Material must comply with Civil Local Rule 79-5.2.2 (filing procedure) 19 and 79-5.3 (service procedure). Confidential Material may only be filed under seal in 20 a manner prescribed by the Court for such filings. This order does not govern the 21 filing of Confidential Material on appeal. 22 24. Confidential Material in Hearings and Trial. The provisions of this 23 Order shall not affect, and this Order does not limit, the admissibility of Confidential 24 Material (or references to that material) as evidence at trial, or during a hearing or 25 similar proceeding in this action. Prior to using Confidential Material or the 26 information contained therein at any pretrial hearing that is open to the public, the 27 party seeking to use the Confidential Material must give at least seven (7) days 28 advance notice to the producing party of the intent to use the Confidential Material so 10 CONFIDENTIALITY ORDER 1 that the producing party may seek an appropriate Court Order to protect the 2 Confidential Material. Any use of Confidential Material at trial shall be governed by 3 the orders of the trial judge. 4 Continuing Effect of this Order and Duty to Destroy 5 25. This Order shall continue to be binding throughout and after the 6 conclusion of this litigation, including all appeals. Within thirty (30) days of 7 settlement or final adjudication, including the expiration or exhaustion of all rights to 8 appeal or petitions for extraordinary writs, each party or non-party to whom any 9 materials were produced shall, without further request or direction from the Producing 10 Party, promptly destroy all documents, items or data received including, but not 11 limited to, copies or summaries thereof, in the possession or control of any expert or 12 employee. This requirement to destroy includes all documents, not only those 13 documents designated as Confidential Material. The Receiving Party shall submit a 14 written certification to the Producing Party by the 30-day deadline that (1) confirms 15 the destruction/deletion of all Confidential Material, including any copies of 16 Confidential Materials provided to persons required to execute Exhibit A (Affidavit), 17 and (2) affirms the Receiving Party has not retained any copies, abstracts, 18 compilations, summaries or any other format reproducing or capturing any of the 19 Confidential Material. Notwithstanding this provision, outside counsel is entitled to 20 retain an archival copy of filings, depositions, and deposition exhibits. 21 Procedure if Confidential Material Is Required to be Produced 22 26. If any person receiving documents covered by this Order is served with 23 a subpoena, order, interrogatory, or document or civil investigative demand 24 (collectively, a “Demand”) issued in any other action, investigation, or proceeding, 25 and such Demand seeks material that was produced or designated as Confidential 26 Material by someone other than the Receiving Party, the Receiving Party shall give 27 prompt written notice by hand or electronic transmission within five (5) business days 28 of receipt of such Demand to the party or non-party who produced or designated the 11 CONFIDENTIALITY ORDER 1 material as Confidential Material, and shall object to the production of such materials 2 on the grounds of the existence of this Order. At the request of the party or non-party 3 who produced or designated the material as Confidential Material, the Receiving 4 Party shall refuse to comply with the Demand unless (a) ordered to do so by a court 5 with jurisdiction over the Receiving Party; or (b) released in writing by the party or 6 non-party who designated the material as Confidential Material. The burden of 7 opposing the enforcement of the Demand shall fall upon the party or non-party who 8 produced or designated the material as Confidential Material. Compliance by the 9 Receiving Party with any order of a court of competent jurisdiction, directing 10 production of any Confidential Material, shall not constitute a violation of this Order. 11 Application of this Order to Productions by Third Parties 12 27. This Order may be used by third parties producing documents in 13 connection with this action. Third parties may designate information as Confidential 14 or Highly Confidential – Attorneys’ Eyes Only. 15 28. If a third party produces (or intends to produce) documents and does not 16 designate (or does not intend to designate) those documents as Confidential Material, 17 then any party to this action may seek to designate that third party’s documents or 18 categories of documents as Confidential Material. In that case, it will be the burden 19 of the party seeking protected status to move for a court order designating the 20 materials as Confidential Material after the parties confer. 21 29. In the event additional parties join or intervene in this litigation, the 22 newly joined party(ies) shall not have access to Confidential Material until (1) its/their 23 counsel has executed and, at the request of any party, filed with the Court the 24 agreement of such party(ies) and such counsel to be fully bound by this Order; or (2) 25 the additional parties or intervenors file an appropriate motion and obtain a court order 26 for access to Confidential Material produced in this litigation. 27 28 30. The parties agree that nothing in this Order shall be deemed to limit the extent to which counsel for the parties may advise or represent their respective clients, 12 CONFIDENTIALITY ORDER EXHIBIT A TO CONFIDENTIALITY ORDER 1 2 3 4 5 6 7 8 Tiffany S. Hansen (SBN 292850) thansen@constangy.com Cody Lee Saal (SBN 286041) csaal@constangy.com CONSTANGY BROOKS, SMITH & PROPHETE, LLP 601 Montgomery St., Suite 350 San Francisco, CA 94111 Tel: (949) 743-3979 Attorneys for Defendant WAL-MART ASSOCIATES, INC. 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 11 TEIANNA RICHARDSON, 12 Plaintiff, 13 14 15 CASE NO: 2:23-CV-9118-KK (AGRx) vs. WAL-MART ASSOCIATES, INC., and DOES 1 to 100, inclusive, Defendants. 16 AFFIDAVIT OF COMPLIANCE WITH CONFIDENTIALITY ORDER Complaint Filed: September 20, 2023 Trial Date: Not set 17 18 1. My name is ___________________. I live at 19 __________________________. I am working on behalf (or at the direction and 20 engagement) of __________________________. 21 2. I am aware that a Confidentiality Order has been entered in the above- 22 captioned lawsuit. A copy of this Confidentiality Order has been given to me, and I 23 have read and understand the provisions of same. 24 3. I acknowledge that documents and information designated as confidential 25 and/or highly confidential pursuant to such Confidentiality Order (“Confidential 26 Materials”) are being disclosed to me only upon the conditions that I agree (a) to be 27 subject to the jurisdiction of this Court, and (b) to comply with that Order. I hereby 28 agree to abide by such Order, subject to all penalties prescribed therein, including 14 CONFIDENTIALITY ORDER 1 contempt of Court, for disobedience of said Order. I promise that the documents and 2 information given confidential treatment under the Confidentiality Order entered in 3 this case will be used by me only to assist counsel for the parties in preparing for 4 litigation of the above-captioned matter. I understand that any use of such 5 Confidential Material in any manner contrary to the provisions of the Confidentiality 6 Order may subject me to the sanctions of this Court for contempt and to liability for 7 any damages caused by my breach of the Confidentiality Order. 8 4. I shall not disclose nor permit to be reviewed or copied said Confidential 9 Materials, or any information derived from, by any person other than the parties and 10 11 12 counsel for the parties or members of their staff. 5. Within 30 days after the above-captioned lawsuit ends in a final nonappealable order, I agree to destroy all Confidential Materials in my possession. 13 14 15 16 17 DATED: _________________, 20___ _______________________________ Signature _______________________________ Printed Name 18 19 20 Page 2 Exhibit A, Affidavit of Compliance with Confidentiality Order 21 22 23 24 25 26 27 28 15 CONFIDENTIALITY ORDER

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