Morgan Chikosi v. Sam's West, Inc. et al

Filing 40

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 39 . (kh)

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ROBERT J. HERRINGTON (SBN 234417)
GREENBERG TRAURIG, LLP
1840 Century Park East, 19th Floor
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
Sam’s West, Inc., Sam’s East, Inc.,
and Walmart Stores, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MORGAN CHIKOSI, individually
and on behalf of all others similarly
situated,

CASE NO. 8:15-cv-01675-AG-(JCGx)
Hon. Andrew J. Guilford

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Plaintiff,
vs.

STIPULATED PROTECTIVE
ORDER

SAM’S WEST, INC.; SAM’S EAST,
INC.; AND WAL-MART STORES,
INC.

Action Filed: October 19, 2015
Trial Date: February 20, 2018

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Defendants.

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STIPULATED PROTECTIVE ORDER
LA 132895317v1

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1.

PURPOSES AND LIMITS OF THIS ORDER

Discovery in this action is likely to involve confidential, proprietary, or private
information requiring special protection from public disclosure and from use for any
purpose other than this litigation. Thus, the Court enters this Protective Order. This Order
does not confer blanket protections on all disclosures or responses to discovery, and the
protection it gives from public disclosure and use extends only to the specific material
entitled to confidential treatment under the applicable legal principles. This Order does
not automatically authorize the filing under seal of material designated under this Order.
Instead, the parties must comply with L.R. 79-5.1 if they seek to file anything under seal.
This Order does not govern the use at trial of material designated under this Order.

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2.

DESIGNATING PROTECTED MATERIAL

2.1 Over-Designation Prohibited. Any party or non-party who designates
information or items for protection under this Order as “CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY CONFIDENTIAL –
SOURCE CODE” (a “designator”) must only designate specific material that qualifies
under the appropriate standards. To the extent practicable, only those parts of documents,
items, or oral or written communications that require protection shall be designated.
Designations with a higher confidentiality level when a lower level would suffice are
prohibited. Mass, indiscriminate, or routinized designations are prohibited. Unjustified
designations expose the designator to sanctions, including the Court’s striking all
confidentiality designations made by that designator. Designation under this Order is
allowed only if the designation is necessary to protect material that, if disclosed to
persons not authorized to view it, would cause competitive or other recognized harm.
Material may not be designated if it has been made public, or if designation is otherwise
unnecessary to protect a secrecy interest. If a designator learns that information or items
that it designated for protection do not qualify for protection at all or do not qualify for

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the level of protection initially asserted, that designator must promptly notify all parties
that it is withdrawing the mistaken designation.
2.2 Manner and Timing of Designations. Designation under this Order requires
the designator to affix the applicable legend (“CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY CONFIDENTIAL –
SOURCE CODE”) to each page that contains protected material. For testimony given in
deposition or other proceeding, the designator shall specify all protected testimony and
the level of protection being asserted. It may make that designation during the deposition
or proceeding, or may invoke, on the record or by written notice to all parties on or
before the next business day, a right to have up to 30 days from the date of receipt of the
written transcript of the deposition or proceeding to make its designation.

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2.2.1 A party or non-party that makes original documents or materials
available for inspection need not designate them for protection until after the
inspecting party has identified which material it would like copied and produced.
During the inspection and before the designation, all material shall be treated as
HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY. After the inspecting
party has identified the documents it wants copied and produced, the producing
party must designate the documents, or portions thereof, that qualify for protection
under this Order.

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2.2.2 Parties shall give advance notice if they expect a deposition or other
proceeding to include designated material so that the other parties can ensure that
only authorized individuals are present at those proceedings when such material is
disclosed or used. The use of a document as an exhibit at a deposition shall not in
any way affect its designation. Transcripts containing designated material shall
have a legend on the title page noting the presence of designated material, and the
title page shall be followed by a list of all pages (including line numbers as
appropriate) that have been designated, and the level of protection being asserted.

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The designator shall inform the court reporter of these requirements. Any transcript
that is prepared before the expiration of the 21-day period for designation shall be
treated during that period as if it had been designated HIGHLY CONFIDENTIAL
– ATTORNEY EYES ONLY unless otherwise agreed. After the expiration of the
21-day period, the transcript shall be treated only as actually designated.
2.3 Inadvertent Failures to Designate. An inadvertent failure to designate does
not, standing alone, waive protection under this Order. Upon timely assertion or
correction of a designation, all recipients must make reasonable efforts to ensure that the
material is treated according to this Order.

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3.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

All challenges to confidentiality designations shall proceed under L.R. 37-1
through L.R. 37-4.

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4.

4.1 Basic Principles. A receiving party may use designated material only for this
litigation. Designated material may be disclosed only to the categories of persons and
under the conditions described in this Order.
4.2 Disclosure of CONFIDENTIAL Material Without Further Approval.
Unless otherwise ordered by the Court or permitted in writing by the designator, a
receiving party may disclose any material designated CONFIDENTIAL only to:

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4.2.1 The receiving party’s outside counsel of record in this action and
employees of outside counsel of record to whom disclosure is reasonably
necessary;

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ACCESS TO DESIGNATED MATERIAL

4.2.2 The officers, directors, and employees of the receiving party to whom
disclosure is reasonably necessary, and who have signed the Agreement to Be
Bound (Exhibit A);

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4.2.3 Experts retained by the receiving party’s outside counsel of record to
whom disclosure is reasonably necessary, and who have signed the Agreement to
Be Bound (Exhibit A);

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4.2.4 The Court and its personnel;

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4.2.5 Outside court reporters and their staff, professional jury or trial
consultants, and professional vendors to whom disclosure is reasonably necessary,
and who have signed the Agreement to Be Bound (Exhibit A);

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4.2.6 During their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the Agreement to Be Bound (Exhibit
A); and

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4.2.7 The author or recipient of a document containing the material, or a
custodian or other person who otherwise possessed or knew the information.
4.3 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY
and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without Further
Approval. Unless permitted in writing by the designator, a receiving party may disclose
material designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or
HIGHLY CONFIDENTIAL – SOURCE CODE without further approval only to:

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4.3.1 The receiving party’s outside counsel of record in this action and
employees of outside counsel of record to whom it is reasonably necessary to
disclose the information;

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4.3.2 The Court and its personnel;

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4.3.3 Outside court reporters and their staff, professional jury or trial
consultants, and professional vendors to whom disclosure is reasonably necessary,
and who have signed the Agreement to Be Bound (Exhibit A); and

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4.3.4 The author or recipient of a document containing the material, or a
custodian or other person who otherwise possessed or knew the information.

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4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY
CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –
SOURCE CODE Material to In-House Counsel or Experts. Unless agreed to in
writing by the designator:

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4.4.1 A party seeking to disclose to in-house counsel any material
designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first
make a written request to the designator providing the full name of the in-house
counsel, the city and state of such counsel’s residence, and such counsel’s current
and reasonably foreseeable future primary job duties and responsibilities in
sufficient detail to determine present or potential involvement in any competitive
decision-making. Inhouse counsel are not authorized to receive material designated
HIGHLY CONFIDENTIAL – SOURCE CODE.

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4.4.2 A party seeking to disclose to an expert retained by outside counsel of
record

any

information

or

item

that

has

been

designated

HIGHLY

CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –
SOURCE CODE must first make a written request to the designator that (1)
identifies the general categories of HIGHLY CONFIDENTIAL – ATTORNEY
EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE information that
the receiving party seeks permission to disclose to the expert, (2) sets forth the full
name of the expert and the city and state of his or her primary residence, (3)
attaches a copy of the expert’s current resume, (4) identifies the expert’s current
employer(s), (5) identifies each person or entity from whom the expert has
received compensation or funding for work in his or her areas of expertise
(including in connection with litigation) in the past five years, and (6) identifies
(by name and number of the case, filing date, and location of court) any litigation
where the expert has offered expert testimony, including by declaration, report, or
testimony at deposition or trial, in the past five years. If the expert believes any of

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this information at (4) - (6) is subject to a confidentiality obligation to a third party,
then the expert should provide whatever information the expert believes can be
disclosed without violating any confidentiality agreements, and the party seeking
to disclose the information to the expert shall be available to meet and confer with
the designator regarding any such confidentiality obligations.

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4.4.3 A party that makes a request and provides the information specified in
paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the identified
inhouse counsel or expert unless, within seven days of delivering the request, the
party receives a written objection from the designator providing detailed grounds
for the objection.

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4.4.4 All challenges to objections from the designator shall proceed under
L.R. 37-1 through L.R. 37-4.

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5.

SOURCE CODE

5.1 Designation of Source Code. If production of source code is necessary, a
party may designate it as HIGHLY CONFIDENTIAL – SOURCE CODE if it is, or
includes, confidential, proprietary, or trade secret source code.
5.2 Location and Supervision of Inspection. Any HIGHLY CONFIDENTIAL –
SOURCE CODE produced in discovery shall be made available for inspection, in a
format allowing it to be reasonably reviewed and searched, during normal business hours
or at other mutually agreeable times, at an office of the designating party’s counsel or
another mutually agreeable location. The source code shall be made available for
inspection on a secured computer in a secured room, and the inspecting party shall not
copy, remove, or otherwise transfer any portion of the source code onto any recordable
media or recordable device. The designator may visually monitor the activities of the
inspecting party’s representatives during any source code review, but only to ensure that
there is no unauthorized recording, copying, or transmission of the source code.

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5.3 Paper Copies of Source Code Excerpts. The inspecting party may request
paper copies of limited portions of source code that are reasonably necessary for the
preparation of court filings, pleadings, expert reports, other papers, or for deposition or
trial. The designator shall provide all such source code in paper form, including Bates
numbers and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.”
5.4 Access Record. The inspecting party shall maintain a record of any individual
who has inspected any portion of the source code in electronic or paper form, and shall
maintain all paper copies of any printed portions of the source code in a secured, locked
area. The inspecting party shall not convert any of the information contained in the paper
copies into any electronic format other than for the preparation of a pleading, exhibit,
expert report, discovery document, deposition transcript, or other Court document. Any
paper copies used during a deposition shall be retrieved at the end of each day and must
not be left with a court reporter or any other unauthorized individual.

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6.

PROSECUTION BAR

Absent written consent from the designator, any individual who receives access to
HIGHLY

CONFIDENTIAL

–

ATTORNEY

EYES

ONLY

or

HIGHLY

CONFIDENTIAL – SOURCE CODE information shall not be involved in the
prosecution of patents or patent applications concerning the field of the invention of the
patents-in-suit for the receiving party or its acquirer, successor, predecessor, or other
affiliate during the pendency of this action and for one year after its conclusion, including
any appeals. “Prosecution” means drafting, amending, advising on the content of, or
otherwise affecting the scope or content of patent claims or specifications. These
prohibitions shall not preclude counsel from participating in reexamination or inter partes
review proceedings to challenge or defend the validity of any patent, but counsel may not
participate in the drafting of amended claims in any such proceedings.

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7.

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OR

ORDERED

with a lawful subpoena or court order. The purpose of the duties described in this section
is to alert the interested parties to the existence of this Order and to give the designator an
opportunity to protect its confidentiality interests in the court where the subpoena or
order issued.
7.2 Notification Requirement. 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, HIGHLY CONFIDENTIAL –
ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE, that
party must:
7.2.1 Promptly notify the designator in writing. Such notification shall
include a copy of the subpoena or court order;
7.2.2 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 Order. Such notification shall include a copy of
this Order; and

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SUBPOENAED

7.1 Subpoenas and Court Orders. This Order in no way excuses noncompliance

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MATERIAL

PRODUCED IN OTHER LITIGATION

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PROTECTED

7.2.3 Cooperate with all reasonable procedures sought by the designator
whose material may be affected.
7.3 Wait For Resolution of Protective Order. If the designator 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, HIGHLY CONFIDENTIAL
– ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE before
a determination by the court where the subpoena or order issued, unless the party has
obtained the designator’s permission. The designator shall bear the burden and expense
of seeking protection of its confidential material in that court.

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8.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

If a receiving party learns that, by inadvertence or otherwise, it has disclosed
designated material to any person or in any circumstance not authorized under this Order,
it must immediately (1) notify in writing the designator of the unauthorized disclosures,
(2) use its best efforts to retrieve all unauthorized copies of the designated material, (3)
inform the person or persons to whom unauthorized disclosures were made of all the
terms of this Order, and (4) use reasonable efforts to have such person or persons execute
the Agreement to Be Bound (Exhibit A).

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9.

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INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE PROTECTED MATERIAL
When a producing party gives notice 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).

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10.

FILING UNDER SEAL

Without written permission from the designator or a Court order, a party may not
file in the public record in this action any designated material. A party seeking to file
under seal any designated material must comply with L.R. 79-5.1. Filings may be made
under seal only pursuant to a court order authorizing the sealing of the specific material
at issue. The fact that a document has been designated under this Order is insufficient to
justify filing under seal. Instead, parties must explain the basis for confidentiality of each
document sought to be filed under seal. Because a party other than the designator will
often be seeking to file designated material, cooperation between the parties in preparing,

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and in reducing the number and extent of, requests for under seal filing is essential. If a
receiving party’s request to file designated material under seal pursuant to L.R. 79-5.1 is
denied by the Court, then the receiving party may file the material in the public record
unless (1) the designator seeks reconsideration within four days of the denial, or (2) as
otherwise instructed by the Court.

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11.

FINAL DISPOSITION

Within 60 days after the final disposition of this action, each party shall return all
designated material to the designator or destroy such material, including all copies,
abstracts, compilations, summaries, and any other format reproducing or capturing any
designated material. The receiving party must submit a written certification to the
designator by the 60- day deadline that (1) identifies (by category, where appropriate) all
the designated 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 designated material. This provision shall not prevent
counsel from retaining 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 designated material. Any such archival copies remain subject to
this Order.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: February 1, 2017

ABTAHI LAW GROUP PC

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By:

/s/ Ali Abtahi
Ali Abtahi
Attorneys for Plaintiff
Morgan Chikosi, individually, and on behalf of
all others similarly situated
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LA 132895317v1

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, ________________________, of

, declare under

penalty of perjury that I have read in its entirety and understand the Stipulated Protective
Order that was issued by the United States District Court for the Central District of
California on [date] in the case of CHIKOSI V. SAM’S WEST, ET AL., USDC
CENTRAL DISTRICT OF CALIFORNIA CASE NO. 8:15-cv-01675-AG-(JCGx). I
agree to comply with and to be bound by all the terms of this Stipulated Protective Order
and I understand and acknowledge that failure to so comply could expose me to sanctions
and punishment in the nature of contempt. I solemnly promise that I will not disclose in
any manner any information or item that is subject to this Stipulated Protective Order to
any person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for
the Central District of California for the purpose of enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occur after termination of this
action.
I hereby appoint _______________________ of __________________________
_________________ as my California agent for service of process in connection with
this action or any proceedings related to enforcement of this Stipulated Protective Order.

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Date: _____________
City and State where sworn and signed:
Printed name:
Signature:

_______________________________

__________________________

_______________________________

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