Henda Mejri v. Lowes Home Centers, LLC et al

Filing 17

PROTECTIVE ORDER by Magistrate Judge Sheri Pym (SEE ORDER FOR DETAILS). (kca)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 18 HENDA MEJRI, 19 Case No. EDCV 18-585-MWF(SPx) Plaintiff, 20 21 22 23 24 25 v. [PROPOSED] PROTECTIVE ORDER LOWE’S HOME CENTERS, INC. DOES 1-100, AND EACH OF THEM, INCLUSIVE. [Discovery Matter: Assigned to Magistrate Judge Sheri Pym] Defendant. 26 27 28 1 [PROPOSED] PROTECTIVE ORDER 1 [PROPOSED] ORDER 2 Pursuant to the stipulation by the Parties and good cause appearing therefor, the 3 Court HEREBY ENTERS the Parties’ STIPULATED PROTECTIVE ORDER, the 4 pertinent elements of which are as follows: 5 1. A. PURPOSES AND LIMITATIONS 6 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 litigation may be warranted. 9 Accordingly, the parties hereby stipulate to and petition the Court to enter the following 10 Stipulated Protective Order. The parties acknowledge that this Order does not confer 11 blanket protections on all disclosures or responses to discovery and that the protection 12 it affords from public disclosure and use extends only to the limited information or items 13 that are entitled to confidential treatment under the applicable legal principles. The 14 parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated 15 Protective Order does not entitle them to file confidential information under seal; Civil 16 Local Rule 79-5 sets forth the procedures that must be followed and the standards that 17 will be applied when a party seeks permission from the court to file material under seal. 18 B. 19 This action is likely to involve disclosure of non-public information concerning 20 Plaintiff or non-parties that is personal in nature and/or protected by the right of privacy; 21 Discovery in this matter may involve disclosure of non-public, confidential, 22 proprietary, commercially sensitive, and/or trade secret information of Defendant 23 Lowe’s Home Centers, LLC. Disclosure of this information to persons who are not 24 entitled to it carries the danger of compromising the competitive business interests of 25 Defendant, and also risks the invasion of legitimate personal privacy interests of 26 Plaintiff and non-parties. GOOD CAUSE STATEMENT 27 Defendant Lowe’s Home Centers, LLC anticipates it may need to produce 28 material that contains proprietary information concerning its business practices and 2 [PROPOSED] PROTECTIVE ORDER 1 procedures for operation of its facilities that may be of value to a competitor or may 2 cause harm to its legitimate business interests in the marketplace. 3 Accordingly, to expedite the flow of information, to facilitate the prompt 4 resolution of disputes over confidentiality of discovery materials, to adequately protect 5 information the parties are entitled to keep confidential, to ensure that the parties are 6 permitted reasonable necessary uses of such material in preparation for and in the 7 conduct of trial, to address their handling at the end of the litigation, and serve the ends 8 of justice, a protective order for such information is justified in this matter. It is the 9 intent of the parties that information will not be designated as confidential for tactical 10 reasons and that nothing be so designated without a good faith belief that it has been 11 maintained in a confidential, non-public manner, and there is good cause why it should 12 not be part of the public record of this case. 13 2. 14 15 16 17 18 DEFINITIONS 2.1 Action: This pending federal lawsuit entitled Henda Mejri v. Lowe’s Home Centers, LLC, EDCV 18-585-MWF(SPx). 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 19 it is generated, stored or maintained) or tangible things that qualify for protection under 20 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 21 Statement. 22 23 24 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 25 items that it produces in disclosures or in responses to discovery as 26 “CONFIDENTIAL.” 27 28 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 3 [PROPOSED] PROTECTIVE ORDER 1 other things, testimony, transcripts, and tangible things), that are produced or generated 2 in disclosures or responses to discovery in this matter. 3 2.7 Expert: a person with specialized knowledge or experience in a matter 4 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 5 expert witness or as a consultant in this Action. 6 2.8 House Counsel: attorneys who are employees of a party to this Action. 7 House Counsel does not include Outside Counsel of Record or any other outside 8 counsel. 9 10 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 11 2.10 Outside Counsel of Record: attorneys who are not employees of a party to 12 this Action but are retained to represent or advise a party to this Action and have 13 appeared in this Action on behalf of that party or are affiliated with a law firm which 14 has appeared on behalf of that party, and includes support staff. 15 2.11 Party: any party to this Action, including all of its officers, directors, 16 employees, consultants, retained experts, and Outside Counsel of Record (and their 17 support staffs). 18 19 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 20 2.13 Professional Vendors: persons or entities that provide litigation support 21 services (e.g., photocopying, videotaping, translating, preparing exhibits or 22 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 23 their employees and subcontractors. 24 25 26 27 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. 28 4 [PROPOSED] PROTECTIVE ORDER 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only Protected 3 Material (as defined above), but also (1) any information copied or extracted from 4 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 5 Material; and (3) any testimony, conversations, or presentations by Parties or their 6 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 10 Even after final disposition of this litigation, the confidentiality obligations 11 imposed by this Order shall remain in effect until a Designating Party agrees otherwise 12 in writing or a court order otherwise directs. Final disposition shall be deemed to be 13 the later of (1) dismissal of all claims and defenses in this Action, with or without 14 prejudice; and (2) final judgment herein after the completion and exhaustion of all 15 appeals, rehearings, remands, trials, or reviews of this Action, including the time limits 16 for filing any motions or applications for extension of time pursuant to applicable law. 17 5. 18 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 19 Each Party or Non-Party that designates information or items for protection under this 20 Order must take care to limit any such designation to specific material that qualifies 21 under the appropriate standards. The Designating Party must designate for protection 22 only those parts of material, documents, items, or oral or written communications that 23 qualify so that other portions of the material, documents, items, or communications for 24 which protection is not warranted are not swept unjustifiably within the ambit of this 25 Order. 26 Mass, indiscriminate, or routinized designations are prohibited. Designations that 27 are shown to be clearly unjustified or that have been made for an improper purpose 28 (e.g., to unnecessarily encumber the case development process or to impose 5 [PROPOSED] PROTECTIVE ORDER 1 unnecessary expenses and burdens on other parties) may expose the Designating Party 2 to sanctions. 3 If it comes to a Designating Party’s attention that information or items that it 4 designated for protection do not qualify for protection, that Designating Party must 5 promptly notify all other Parties that it is withdrawing the inapplicable designation. 6 5.2 Manner and Timing of Designations. Except as otherwise provided in this 7 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated 8 or ordered, Disclosure or Discovery Material that qualifies for protection under this 9 Order must be clearly so designated before the material is disclosed or produced. 10 11 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 12 documents, but excluding transcripts of depositions or other pretrial or trial 13 proceedings), that the Producing Party affix at a minimum, the legend 14 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 15 contains protected material. If only a portion or portions of the material on a page 16 qualifies for protection, the Producing Party also must clearly identify the protected 17 portion(s) (e.g., by making appropriate markings in the margins). 18 A Party or Non-Party that makes original documents available for inspection 19 need not designate them for protection until after the inspecting Party has indicated 20 which documents it would like copied and produced. During the inspection and before 21 the designation, all of the material made available for inspection shall be deemed 22 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 23 copied and produced, the Producing Party must determine which documents, or portions 24 thereof, qualify for protection under this Order. Then, before producing the specified 25 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page 26 that contains Protected Material. If only a portion or portions of the material on a page 27 qualifies for protection, the Producing Party also must clearly identify the protected 28 portion(s) (e.g., by making appropriate markings in the margins). 6 [PROPOSED] PROTECTIVE ORDER 1 (b) for testimony given in depositions that the Designating Party 2 identify the Disclosure or Discovery Material on the record, before the close of the 3 deposition all protected testimony. 4 (c) for information produced in some form other than documentary and 5 for any other tangible items, that the Producing Party affix in a prominent place on the 6 exterior of the container or containers in which the information is stored the legend 7 “CONFIDENTIAL.” If only a portion or portions of the information warrants 8 protection, the Producing Party, to the extent practicable, shall identify the protected 9 portion(s). 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive the 12 Designating Party’s right to secure protection under this Order for such material. Upon 13 timely correction of a designation, the Receiving Party must make reasonable efforts to 14 assure that the material is treated in accordance with the provisions of this Order. 15 6. 16 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 17 designation of confidentiality at any time that is consistent with the Court’s Scheduling 18 Order. 19 20 21 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 22 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., 23 to harass or impose unnecessary expenses and burdens on other parties) may expose the 24 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn 25 the confidentiality designation, all parties shall continue to afford the material in 26 question the level of protection to which it is entitled under the Producing Party’s 27 designation until the Court rules on the challenge. 28 7 [PROPOSED] PROTECTIVE ORDER 1 2 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 3 disclosed or produced by another Party or by a Non-Party in connection with this Action 4 only for prosecuting, defending, or attempting to settle this Action. Such Protected 5 Material may be disclosed only to the categories of persons and under the conditions 6 described in this Order. When the Action has been terminated, a Receiving Party must 7 comply with the provisions of section 13 below (FINAL DISPOSITION). 8 Protected Material must be stored and maintained by a Receiving Party at a 9 location and in a secure manner that ensures that access is limited to the persons 10 11 authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 12 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 13 may disclose any information or item designated “CONFIDENTIAL” only to: 14 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 15 well as employees of said Outside Counsel of Record to whom it is reasonably 16 necessary to disclose the information for this Action; 17 18 19 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom 20 disclosure is reasonably necessary for this Action and who have signed the 21 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 22 (d) the court and its personnel; 23 (e) court reporters and their staff; 24 (f) professional jury or trial consultants, mock jurors, and Professional 25 Vendors to whom disclosure is reasonably necessary for this Action and who have 26 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 28 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 8 [PROPOSED] PROTECTIVE ORDER 1 (h) during their depositions, witnesses, and attorneys for witnesses, in 2 the Action to whom disclosure is reasonably necessary provided: (1) the deposing party 3 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 4 not be permitted to keep any confidential information unless they sign the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 6 by the Designating Party or ordered by the court. Pages of transcribed deposition 7 testimony or exhibits to depositions that reveal Protected Material may be separately 8 bound by the court reporter and may not be disclosed to anyone except as permitted 9 under this Stipulated Protective Order; and 10 (i) any mediator or settlement officer, and their supporting personnel, 11 mutually agreed upon by any of the parties engaged in settlement discussions. 12 8. 13 OTHER LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 14 If a Party is served with a subpoena or a court order issued in other litigation that 15 compels disclosure of any information or items designated in this Action as 16 “CONFIDENTIAL,” that Party must: 17 18 19 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or 20 order to issue in the other litigation that some or all of the material covered by the 21 subpoena or order is subject to this Protective Order. Such notification shall include a 22 copy of this Stipulated Protective Order; and 23 24 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 25 If the Designating Party timely seeks a protective order, the Party served with the 26 subpoena or court order shall not produce any information designated in this action as 27 “CONFIDENTIAL” before a determination by the court from which the subpoena or 28 order issued, unless the Party has obtained the Designating Party’s permission. The 9 [PROPOSED] PROTECTIVE ORDER 1 Designating Party shall bear the burden and expense of seeking protection in that court 2 of its confidential material and nothing in these provisions should be construed as 3 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive 4 from another court. 5 9. 6 IN THIS LITIGATION 7 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED (a) The terms of this Order are applicable to information produced by a 8 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 9 produced by Non-Parties in connection with this litigation is protected by the remedies 10 and relief provided by this Order. Nothing in these provisions should be construed as 11 prohibiting a Non-Party from seeking additional protections. 12 (b) In the event that a Party is required, by a valid discovery request, to 13 produce a Non-Party’s confidential information in its possession, and the Party is 14 subject to an agreement with the Non-Party not to produce the Non-Party’s confidential 15 information, then the Party shall: 16 (1) promptly notify in writing the Requesting Party and the Non- 17 Party that some or all of the information requested is subject to a confidentiality 18 agreement with a Non-Party; 19 (2) promptly provide the Non-Party with a copy of the Stipulated 20 Protective Order in this Action, the relevant discovery request(s), and a reasonably 21 specific description of the information requested; and 22 (3) make the information requested available for inspection by 23 the Non-Party, if requested. 24 (c) If the Non-Party fails to seek a protective order from this court 25 within 14 days of receiving the notice and accompanying information, the Receiving 26 Party may produce the Non-Party’s confidential information responsive to the discovery 27 request. If the Non-Party timely seeks a protective order, the Receiving Party shall not 28 produce any information in its possession or control that is subject to the confidentiality 10 [PROPOSED] PROTECTIVE ORDER 1 agreement with the Non-Party before a determination by the court. Absent a court order 2 to the contrary, the Non-Party shall bear the burden and expense of seeking protection 3 in this court of its Protected Material. 4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 6 Protected Material to any person or in any circumstance not authorized under this 7 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 8 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 9 all unauthorized copies of the Protected Material, (c) inform the person or persons to 10 whom unauthorized disclosures were made of all the terms of this Order, and (d) request 11 such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 12 that is attached hereto as Exhibit A. 13 11. 14 PROTECTED MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 15 When a Producing Party gives notice to Receiving Parties that certain 16 inadvertently produced material is subject to a claim of privilege or other protection, 17 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 18 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 19 may be established in an e-discovery order that provides for production without prior 20 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 21 parties reach an agreement on the effect of disclosure of a communication or 22 information covered by the attorney-client privilege or work product protection, the 23 parties may incorporate their agreement in the stipulated protective order submitted to 24 the court. 25 12. 26 27 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. 28 11 [PROPOSED] PROTECTIVE ORDER 1 12.2 Right to Assert Other Objections. By stipulating to the entry of this 2 Protective Order no Party waives any right it otherwise would have to object to 3 disclosing or producing any information or item on any ground not addressed in this 4 Stipulated Protective Order. Similarly, no Party waives any right to object on any 5 ground to use in evidence of any of the material covered by this Protective Order. 6 12.3 Filing Protected Material. A Party that seeks to file under seal any 7 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 8 only be filed under seal pursuant to a court order authorizing the sealing of the specific 9 Protected Material at issue. If a Party’s request to file Protected Material under seal is 10 denied by the court, then the Receiving Party may file the information in the public 11 record unless otherwise instructed by the court. 12 13. FINAL DISPOSITION 13 After the final disposition of this Action, as defined in paragraph 4, within 60 14 days of a written request by the Designating Party, each Receiving Party must return all 15 Protected Material to the Producing Party or destroy such material. As used in this 16 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 17 summaries, and any other format reproducing or capturing any of the Protected 18 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 19 must submit a written certification to the Producing Party (and, if not the same person 20 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 21 category, where appropriate) all the Protected Material that was returned or destroyed 22 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 23 compilations, summaries or any other format reproducing or capturing any of the 24 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 25 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 26 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 27 work product, and consultant and expert work product, even if such materials contain 28 12 [PROPOSED] PROTECTIVE ORDER 1 Protected Material. Any such archival copies that contain or constitute Protected 2 Material remain subject to this Protective Order as set forth in Section 4 (DURATION). 3 14. 4 including, without limitation, contempt proceedings and/or monetary sanctions. Any violation of this Order may be punished by any and all appropriate measures 5 6 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 7 8 9 10 DATED: October 25, 2018 The Honorable Sheri Pym United States District/Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 [PROPOSED] PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ________________________ [print or type full name], of ____________________ 4 [print or type full address], declare under penalty of perjury that I have read in its 5 entirety and understand the Stipulated Protective Order that was issued by the United 6 States District Court for the Central District of California on _____ [date] in the case of 7 Henda Mejri v. Lowe’s Home Centers, LLC, EDCV 18-585-MWF(SPx). I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I 9 understand and acknowledge that failure to so comply could expose me to sanctions and 10 punishment in the nature of contempt. I solemnly promise that I will not disclose in any 11 manner any information or item that is subject to this Stipulated Protective Order to any 12 person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Central District of California for the purpose of enforcing the terms of this Stipulated 15 Protective Order, even if such enforcement proceedings occur after termination of this 16 action. I hereby appoint ___________________________ [print or type full name] of 17 _________________________ [print or type full address and telephone number] as my 18 California agent for service of process in connection with this action or any proceedings 19 related to enforcement of this Stipulated Protective Order. 20 Date: 21 City and State where sworn and signed: 22 23 Printed name: 24 25 Signature: 26 27 28 023797.0000563 EMF_US 71171087v1 14 [PROPOSED] PROTECTIVE ORDER

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