Peterson et al v. Walgreen Co.

Filing 28

ORDER on 27 Stipulation Regarding Confidentiality Agreement signed by Magistrate Judge Gary S. Austin on 5/3/2013. (Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEOFFREY PETERSON and BRANDON
MILLER, individuals and on behalf of others
similarly situated,

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Case No. 1:12-CV-01832-LJO-GSA
Honorable Lawrence J. O’Neill
U.S. Magistrate Judge Gary S. Austin

Plaintiffs,
ORDER ON STIPULATION
REGARDING CONFIDENTIALITY
AGREEMENT

v.
WALGREEN CO., and DOES 1 to 100,
Inclusive,
Defendants.

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Complaint Filed:

November 7, 2012

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ORDER ON STIPULATION REGARDING CONFIDENTIALITY AGREEMENT
CASE NO. 1:12-CV-01832-LJO-GSA
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The parties’ stipulation as outlined below is adopted by the Court, however, in

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addition, the parties are advised that any documents filed under seal must comport with

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the procedures outlined in Local Rule 141.

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1.

The parties acknowledge that discovery in this lawsuit may require the disclosure

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of documents and other materials that are trade secret, commercially sensitive, proprietary and/or

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otherwise confidential in nature, including but not limited to, Defendant’s training documents,

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documents that could compromise the safety of Defendant’s employees and/or documents that

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contain private personnel information relating to Defendant’s current and former employees.

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2.

The parties hereby agree that any party or non-party subject to discovery in this

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action may designate documents; deposition testimony, transcripts, and exhibits; responses to

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interrogatories; responses to requests for admission; and other written, recorded, or graphic

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information and materials produced by a party or non-party in the course of this action as

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“Confidential” (hereafter referred to as “Confidential Information”). “Confidential Information”

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may include information that has not been made public and that refers to, describes, or consists

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of the disclosure of confidential, proprietary, or otherwise non-public business, technical, or

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financial information, information that may compromise the safety of Defendant’s employees,

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employee personnel and earnings information, or information protected by third-party privacy

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rights. Confidential Information may include not only the information contained in documents

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and other materials designated as such pursuant to this Order, but also to any summaries, copies,

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abstracts, compilations, or other documents or material derived from Confidential Information.

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The parties acknowledge that the only information that should be designated as Confidential

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Information is that which is properly subject to protection. The parties will not designate as

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“Confidential” any discovery material without first making a good faith determination that such

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protection is warranted.

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3.

The party or third party asserting the Confidential designation as to any Discovery

Material shall have the burden of justifying that designation consistent with California law. A

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[PROPOSED] ORDER ON STIPULATION RE CONFIDENTIALITY AGREEMENT
CASE NO. 1:12-CV-01832-LJO-GSA
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party may challenge the designation in accordance with paragraph 8, below. Until the Court

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rules otherwise, the challenged Discovery Material shall not be used outside of this pending

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litigation and shall be treated as Confidential with respect to all third parties who are strangers to

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this litigation.

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4.

In the case of documents and other materials produced by a party, the

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“Confidential” designation shall be made at the time of production. A producing party may

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designate as “Confidential,” in whole or in part, any documents or other materials by so advising

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all other parties and by marking any copies of the documents or other materials, in a manner not

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affecting legibility, with the word “Confidential.” Any party may obtain confidential treatment

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for documents or other materials previously produced by any party or non-party without such

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designation if the party seeking the designation sends written notice of such designation to all

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other parties or non-parties in the possession of such documents or other materials and within

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thirty (30) days of their production marks the subject documents or other materials with the word

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“Confidential” and reproduces them. All documents and other materials produced by a non-

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party and not designated as “Confidential” by a party at the time of their production shall

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nonetheless be treated as Confidential Information for thirty (30) days following such

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production.

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5.

With respect to testimony elicited during depositions, whenever counsel for a

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party deems that any question or line of questioning calls for the disclosure of information that

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should be treated as Confidential Information, counsel may: (i) designate on the record prior to

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such disclosure that such information is being designated as “Confidential” or (ii) give written

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notice to all other counsel that such information is being designated as “Confidential” within

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twenty-one (21) days after receiving a copy of the deposition transcript.

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6.

Confidential Information will be held by the receiving party exclusively for use in

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connection with the above-captioned action and any appeals thereof. A party shall not

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disseminate to any third party outside of this litigation any Confidential Information produced by

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the other party or by a non-party except as necessary for use in these proceedings, and subject to

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PROPOSED ORDER ON STIPULATION REGARDING CONFIDENTIALITY AGREEMENT
CASE NO. 1:12-CV-01832-LJO-GSA
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the further restrictions set forth in paragraph 7, below. The parties shall take reasonable and

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prudent measures to safeguard the confidentiality of all Confidential Information.

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7.

Confidential Information shall not be used or disclosed directly or indirectly by

the party receiving such Confidential Information to persons other than:
(a)

The Court, persons employed by the Court, the stenographer transcribing the

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testimony or argument at a hearing, trial, or deposition in this action, and any special master or

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mediator appointed by the court or agreed-to by the parties, except that such Confidential

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Information disclosed in deposition shall be marked by the stenographer as Confidential and

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shall be subject to the provisions of this Order including those contained in paragraph 11 relating

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to the lodging and/or filing of Confidential Information under seal;
(b)

Counsel of record for any party to this action, as well as regular employees of

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such counsel, and outside copy services, used to assist in the defense or prosecution of this

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litigation;

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(c)

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Experts and consultants consulted or retained by any party or counsel of record

for any party to assist in the defense or prosecution of this litigation;
(d)

Any individual party provided that the party agrees to be bound by the terms of

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this Order; except that neither the named Plaintiffs nor any subsequent named Plaintiff shall have

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the right to review any other non-party employee’s confidential employment data, or

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Defendant’s extremely sensitive Confidential Information whose disclosure to would create a

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substantial risk of serious injury that could not be avoided by less restrictive means; such

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Confidential Information shall be designated “Attorney’s Eyes Only”; and

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(e)

Any employee, former employee, agent or independent contractor of any party

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who is requested by counsel to assist in the defense or prosecution of this litigation, provided,

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however, that disclosure of the Confidential Information to said individual is made only to the

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extent necessary for the employee, former employee, agent or independent contractor to perform

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such assistance; and

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(f)

Any witness who is deposed and/or who testifies in this case provided that

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PROPOSED ORDER ON STIPULATION REGARDING CONFIDENTIALITY AGREEMENT
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they agree in writing or on the record during deposition not to disclose the Confidential
Information to any third parties outside of the context of this litigation.

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Any party that seeks to make disclosure of Confidential Information permitted

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under this Order to a person listed in subparagraphs 7(c) or 7(e) above shall, prior to such

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disclosure, advise the recipient of such information of the contents of this Order and obtain their

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written agreement in the form attached as Exhibit A (or, in the case of witnesses, on the record

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during deposition) not to disclose the Confidential Information to any third parties outside of the

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context of this litigation. All such written agreements shall be retained by counsel for the party

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who discloses the Confidential Information in the way.

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8.

Any party may object to the designation of particular documents or other

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materials as “Confidential” by giving written notice (email notice shall be sufficient) to the party

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making the designation and to all other parties. Such notice shall identify with reasonable

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specificity the documents or other materials to which the objection is directed and the basis for

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the objection. The parties shall attempt to resolve any such dispute by meeting and conferring.

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In the event the dispute cannot be resolved within thirty (30) days after the parties meet and

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confer in effort to resolve their dispute, it shall be the obligation of the designating party to file

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an appropriate motion requesting a ruling by the Court that the disputed documents or other

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materials be designated “Confidential.” Pending a ruling from the Court, the challenged

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Discovery Material shall not be used outside of this pending litigation and shall be treated as

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Confidential. Nothing contained herein shall prevent any party from using Discovery Material

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that has been designated Confidential by one party and challenged by another party, provided

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they treat Confidential Information as Confidential, prior to a ruling from the Court on the

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Designating Party’s motion for an order determining that the particular document or information

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is Confidential Information unless the designating party fails to bring a motion in response to a

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non-designating party’s objection, and the parties do not otherwise agree that the information

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designated as “Confidential” should continue to be treated as Confidential Information.

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PROPOSED ORDER ON STIPULATION REGARDING CONFIDENTIALITY AGREEMENT
CASE NO. 1:12-CV-01832-LJO-GSA
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9.

In the event that any Confidential Information filed and/or lodged under seal as

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provided for in paragraph 11, is used in any Court proceeding in this action, it shall not lose its

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confidential status through such use.

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10.

Nothing herein shall be construed to affect in any way the admissibility of any

document, testimony, or other evidence at trial.
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Documents or other materials filed by any party with the Court before, during, or

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after trial that contain Confidential Information shall be filed with the Clerk of the Court under

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seal and subject to further order of the Court, except to the extent that such Confidential

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Information is deemed not to be Confidential by the Court or else loses its Confidential

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designation as a result of an objection to the Confidential designation made by a non-designating

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party and the designating party’s failure to bring a timely motion as provided in paragraph 8 .

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Any such materials filed and/or lodged under seal with the Court shall be filed and/or lodged

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separately in a sealed envelope marked in accordance with the provisions of the Local Rules.

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12.

Any party may consent to have any documents or other materials it previously

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designated as “Confidential” removed from the scope of this Order by so notifying counsel for

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the other parties in writing or by so stating on the record at any hearing or deposition. Nothing

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contained in this Order shall prevent any party from disclosing its own Confidential Information

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as it deems appropriate. If a party discloses its own Confidential Information, such disclosure

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will have the effect of rendering the information or documents non-Confidential.

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13.

The provisions of this Order shall not terminate at the conclusion of this action.

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Within 120 days of final conclusion of all aspects of this litigation, including any and all appeals,

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documents and other materials stamped or otherwise identified as “Confidential” and all copies

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of same (other than exhibits of record and the one file copy of each “Confidential” document per

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party that the California State Bar requires be kept for three years) shall be returned to the party

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that produced such documents or destroyed. All counsel of record shall, upon written request,

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provide written confirmation that the documents at issue have been returned and/or destroyed

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and shall deliver the same to counsel for the party that produced the documents not more than

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PROPOSED ORDER ON STIPULATION REGARDING CONFIDENTIALITY AGREEMENT
CASE NO. 1:12-CV-01832-LJO-GSA
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120 days after final termination of this litigation. One year following the final conclusion of all

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aspects of this litigation, the one file copy of each “Confidential” document maintained by each

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party shall be returned to the party that produced such documents or destroyed. All counsel of

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record shall upon written request, provide written confirmation that the documents at issue have

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been returned and/or destroyed not more than 120 days after the one-year anniversary of the final

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termination of this litigation.

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14.

The inadvertent production or disclosure of any privileged or otherwise protected

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information by any party shall not constitute, or be considered as a factor suggesting, a waiver or

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impairment of any claims of privilege or protection, including but not limited to, the attorney

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client privilege and the protection afforded to work product materials.
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If any privileged or otherwise protected information is inadvertently produced, the

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producing party must provide written notice to any other parties that such information, or

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discovery material containing such information, has been inadvertently produced or disclosed.

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Within three (3) business days of the receipt of such notice, each other party shall return to the

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producing party all such discovery material and copies thereof identified in the notice in its

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possession, and shall make reasonable efforts to reclaim and return any such discovery material

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and information. The party that has inadvertently produced or disclosed such information shall,

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within ten (10) business days after such material is returned to it, provide a privilege log

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identifying the discovery material and the copies returned to the producing party such that the

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non-producing party is able to challenge the producing party’s claim that the discovery materials

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are privileged or otherwise protected.

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PROPOSED ORDER ON STIPULATION REGARDING CONFIDENTIALITY AGREEMENT
CASE NO. 1:12-CV-01832-LJO-GSA
15239839v.1

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This Stipulation and Order is subject to revocation and modification by order of the Court,
upon written stipulation of the parties, or upon motion and reasonable notice.

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Dated:

May 3, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Sig nature-END:

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PROPOSED ORDER ON STIPULATION RE CONFIDENTIALITY AGREEMENT
CASE NO. 1:12-CV-01832-LJO-GSA

15239839v.1