Beverly Lynn Bruce v. Lowe's Home Centers, LLC

Filing 14

ORDER GRANTING STIPULATED PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato (re Joint REQUEST for Protective Order for Confidential Information/Documents STIPULATED PROTECTIVE ORDER 13 . See Order for details. (vp)

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CHARLES D. MAY, ESQ.; STATE BAR NO.: 129663
THARPE & HOWELL, LLP
15250 Ventura Blvd,, Ninth Floor
Sherman Oaks, California 91403
[phone]; [phone] fax
E-Mail: [e-mail]

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Attorneys for Defendant,
LOWE’S HOME CENTERS, LLC

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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BEVERLY LYNN BRUCE,

CASE NO.: 5:15-CV-02632-RGK-KK

Plaintiff(s),

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v.

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LOWE’S HOME CENTERS, LLC;
and DOES 1 through 30, Inclusive,

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Defendant(s).

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(Riverside County Superior Court Case No.
PSC 1504610)
STIPULATED PROTECTIVE ORDER
Discovery Matter
Hon. Kenly Kiya Kato
U.S. Magistrate Judge

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Plaintiff BEVERLY LYNN BRUCE (“Plaintiff”) and Defendant LOWE’S
HOME CENTERS, LLC (“Defendant”) jointly submit this Stipulated Protective
Order pursuant to Federal Rules of Civil Procedure, Rule 26(c)(1) limiting the use
and disposition of certain information and documents during litigation of this matter.
The parties agree that discovery in this action may yield documents and information
of a sensitive and confidential nature, including but not limited to, Defendant’s
proprietary policies and procedures, personnel files of present and former employees,
and other confidential information that may be subject to discovery in the
proceedings in this matter but which should not be made available to the public
generally. As a result, the parties have agreed to this jointly submitted Stipulated
Protective Order and request that it be adopted by order of this Court.
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-1STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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1. A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,
proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may be
warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter
the following Stipulated Protective Order. The parties acknowledge that this Order
does not confer blanket protections on all disclosures or responses to discovery and
that the protection it affords from public disclosure and use extends only to the
limited information or items that are entitled to confidential treatment under the
applicable legal principles. The parties further acknowledge, as set forth in Section
12.3, below, that this Stipulated Protective Order does not entitle them to file
confidential information under seal; Civil Local Rule 79-5 sets forth the procedures
that must be followed and the standards that will be applied when a party seeks
permission from the court to file material under seal.
B. GOOD CAUSE STATEMENT
In light of the nature of the claims and allegations in this case and the parties’
representations that discovery in this case will involve the production of confidential
records, and in order to expedite the flow of information, to facilitate the prompt
resolution of disputes over confidentiality of discovery materials, to adequately
protect information the parties are entitled to keep confidential, to ensure that the
parties are permitted reasonable necessary uses of such material in connection with
this action, to address their handling of such material at the end of the litigation, and
to serve the ends of justice, a protective order for such information is justified in this
matter. Federal Rules of Civil Procedure, Rule 26(c)(1) states in pertinent part, that
the Court, upon a showing of good cause may “issue an order to protect a party from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P.
26(c)(1). In the instant matter, Defendant’s Confidential Documents contain
proprietary and confidential trade secret information relating to defendant’s business
-2STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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practices and its safety protocol. Defendant derives independent economic value
from maintaining the confidentiality of the policies and procedures set forth in these
Confidential Documents.
Defendant is a retailer in the home improvement industry and has conducted
business in California since 1998. The home improvement retail industry is very
competitive. As a result of years of investing time and money in research and
investigation, defendant developed the policies contained in the Confidential
Documents for the purposes of maintaining the security and accessibility of its
merchandise, providing quality customer service, and ensuring the safety of its
employees and customers. These policies and procedures, as memorialized in the
Confidential Documents, were created and generated by Lowe’s for Lowe’s, and are
used for the purposes of maintaining safety at its stores and creating efficient and
organized work environments for its employees. As a result, defendant is able to
minimize the waste of any resources, which is a key factor in generating profitability
for its business.
Defendant derives economic value from maintaining the secrecy of its
Confidential Documents. If disclosed to the public, the trade secret information
contained in defendant’s Confidential Documents would reveal defendant’s internal
operations and could potentially be used by competitors as a means to compete for
its customers, interfere with its business plans and thereby gain unfair business
advantages. If defendant’s safety protocol were revealed to the general public, it
would hinder defendant’s ability to effectively resolve and minimize liability claims,
and its goal of protecting its customers and employees from theft and other crimes.
Unrestricted or unprotected disclosure of such information would result in prejudice
or harm to Defendant by revealing Lowe’s competitive confidential information,
which has been developed at the expense of Lowe’s and which represents valuable
tangible and intangible assets. Accordingly, the parties respectfully submit that there
is good cause for the entry of this Protective Order.
-3STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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The parties shall not designate any information/documents as confidential
without a good faith belief that such information/documents have been maintained in
a confidential, non-public manner, and that there is good cause or a compelling
reason why it should not be part of the public record of this case.
2. DEFINITIONS
2.1 Action: The instant action: Beverly Lynn Bruce v. Lowe’s Home Centers,
LLC; Does 1 to 30, inclusive, Case No. 5:15-CV-02632-RGK-KK (Riverside County
Superior Court Case No.: PSC 1504610).
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 how
it is generated, stored or maintained) or tangible things that qualify for protection
under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
Cause Statement.
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
items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
2.6 Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this matter.
2.7 Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to serve as
an expert witness or as a consultant in this Action.
2.8 House Counsel: attorneys who are employees of a party to this Action.
House Counsel does not include Outside Counsel of Record or any other outside
-4STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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counsel.
2.9 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a party
to this Action but are retained to represent or advise a party to this Action and have
appeared in this Action on behalf of that party or are affiliated with a law firm which
has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
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
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
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.
3. SCOPE
The protections conferred by this Order cover not only Protected Material (as
defined above), but also (1) any information copied or extracted from Protected
Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
and (3) any deposition testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material, other than during a court hearing or at
trial. Any use of Protected Material during a court hearing or at trial shall be
governed by the orders of the presiding judge. This Order does not govern the use of
-5STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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Protected Material during a court hearing or at trial.

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4. DURATION

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be
deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
or without prejudice; and (2) final judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
including the time limits for filing any motions or applications for extension of time
pursuant to applicable law.

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5. DESIGNATING PROTECTED MATERIAL

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5.1 Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate for
protection only those parts of material, documents, items, or oral or written
communications that qualify so that other portions of the material, documents, items,
or communications for which protection is not warranted are not swept unjustifiably
within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to impose
unnecessary expenses and burdens on other parties) may expose the Designating
Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
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-6STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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5.2 Manner and Timing of Designations. Except as otherwise provided in this
Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
under this Order must be clearly so designated before the material is disclosed or
produced.

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Designation in conformity with this Order requires:

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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(a) for information in documentary form (e.g., paper or electronic documents,
but excluding transcripts of depositions), that the Producing Party affix at a
minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”),
to each page that contains protected material. If only a portion or portions of the
material on a page qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the
margins).

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A Party or Non-Party that makes original documents available for inspection
need not designate them for protection until after the inspecting Party has indicated
which documents it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
it wants copied and produced, the Producing Party must determine which documents,
or portions thereof, qualify for protection under this Order. Then, before producing
the specified documents, the Producing Party must affix the “CONFIDENTIAL
legend” to each page that contains Protected Material. If only a portion or portions of
the material on a page qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the
margins).

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(b) for testimony given in depositions that the Designating Party identifies on
the record, before the close of the deposition as protected testimony.
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-7STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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(c) for information produced in some form other than documentary and for any
other tangible items, that the Producing Party affix in a prominent place on the
exterior of the container or containers in which the information is stored the legend
“CONFIDENTIAL.” If only a portion or portions of the information warrants
protection, the Producing Party, to the extent practicable, shall identify the protected
portion(s).
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such material.
Upon timely correction of a designation, the Receiving Party must make reasonable
efforts to assure that the material is treated in accordance with the provisions of this
Order.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a
designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order.
6.2 Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local Rule 37-1 et seq.
6.3 The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges, and those made for an improper purpose
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
expose the Challenging Party to sanctions. Unless the Designating Party has waived
or withdrawn the confidentiality designation, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the Producing
Party’s designation until the Court rules on the challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or - 8 -a Non-Party in connection with this
by
STIPULATED PROTECTIVE ORDER
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Case No.: 5:15-cv-02632-RGK-KK

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Action only for prosecuting, defending, or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of Section 13 below.

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Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
ordered by the court or permitted in writing by the Designating Party, a Receiving
Party may disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
employees of said Outside Counsel of Record to whom it is reasonably 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 Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Action;

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

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(g) during their depositions, witnesses, and attorneys for witnesses, in the
Action to whom disclosure is reasonably necessary; and

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(h) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
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-9STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order unless prohibited by law;
(b) promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena
or order is subject to this Protective Order. Such notification shall include a copy of
this Protective Order; and
(c) 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
the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party’s
permission, or unless otherwise required by the law or court order. The Designating
Party shall bear the burden and expense of seeking protection in that court of its
confidential material and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this Action to disobey a lawful
directive from another court.
9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a NonParty in this Action and designated as “CONFIDENTIAL.” Such information
produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order.10 Nothing in these provisions should be
STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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

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(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Protective Order

THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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(3) make the information requested available for inspection by the Non-

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Party, if requested.

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(c) If a Non-Party represented by counsel fails to commence the process called
for by Local Rules 45-1 and 37-1, et seq. within 14 days of receiving the notice and
accompanying information or fails contemporaneously to notify the Receiving Party
that it has done so, the Receiving Party may produce the NonParty’s confidential
information responsive to the discovery request. If an unrepresented Non-Party fails
to seek a protective order from this court within 14 days of receiving the notice and
accompanying information, the Receiving Party may produce the Non-Party’s
confidential information responsive to the discovery request. If the Non-Party timely
seeks a protective order, the Receiving Party shall not produce any information in its
possession or control that is subject to the confidentiality agreement with the NonParty before a determination by the court unless otherwise required by the law or
court order. Absent a court order to the contrary, the Non-Party shall bear the burden
and expense of seeking protection in this court of its Protected Material.
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- 11 STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Protective Order, the Receiving Party must immediately (a) notify in writing the
Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
all unauthorized copies of the Protected Material, (c) inform the person or persons to
whom unauthorized disclosures were made of all the terms of this Order, and (d)
request such person or persons to execute the “Acknowledgment and Agreement to
Be Bound” that is attached hereto as Exhibit A.
11. INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection,
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection, the
parties may incorporate their agreement into this Protective Order.
12. MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. No Party waives any right it otherwise
would have to object to disclosing or producing any information or item on any
ground not addressed in this Protective Order. Similarly, no Party waives any right to
object on any ground to use in evidence of any of the material covered by this
Protective Order.

- 12 STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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12.3 Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5 and with any pertinent
orders of the assigned District Judge and Magistrate Judge, including any procedures
adopted under the Pilot Project for the Electronic Submission and Filing of Under
Seal Documents. Protected Material may only be filed under seal pursuant to a court
order authorizing the sealing of the specific Protected Material at issue. If a Party's
request to file Protected Material under seal is denied by the court, then the
Receiving Party may file the information in the public record unless otherwise
instructed by the court.
13. FINAL DISPOSITION
After the final disposition of this Action, as defined in Section 4, within 60
days of a written request by the Designating Party, each Receiving Party must return
all Protected Material to the Producing Party or destroy such material. As used in this
subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving
Party must submit a written certification to the Producing Party (and, if not the same
person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
(by category, where appropriate) all the Protected Material that was returned or
destroyed and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries or any other format reproducing or capturing any
of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if such
materials contain Protected Material. Any such archival copies that contain or
constitute Protected Material remain subject to this Protective Order as set forth in
Section 4.

- 13 STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK

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

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Dated:

JACOB REGAR LAW

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By:

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JACOB REGAR
Attorney for Plaintiff,
BEVERLY LYNN BRUCE

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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

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Dated:

THARPE & HOWELL, LLP

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By:

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CHARLES D. MAY
BRIAN J. KIM
Attorneys for Defendant,
LOWE’S HOME CENTERS

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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Date: July 12, 2106

______________________________
HON. KENLY KIYA KATO
U.S. MAGISTRATE JUDGE

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- 14 STIPULATED PROTECTIVE ORDER
Bruce v. Lowe’s
Case No.: 5:15-cv-02632-RGK-KK