McMillan v. Lowe's Home Centers, LLC et al

Filing 95

PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT. Order signed by Magistrate Judge Sheila K. Oberto on 1/30/2017. (Thorp, J)

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1 2 3 4 5 6 7 HUNTON & WILLIAMS LLP Phillip J. Eskenazi (SBN 158976) peskenazi@hunton.com Neil K. Gilman (admitted pro hac vice) ngilman@hunton.com 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 Attorneys for Defendants LOWE’S HOME CENTERS, LLC 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 GLENN McMILLAN, individually, and on behalf of all others similarly situated, Plaintiff, 13 14 15 16 17 18 v. LOWE’S HOME CENTERS, LLC, a North Carolina limited liability company, and GRO-WELL BRANDS, INC., a Delaware corporation, 19 20 21 22 23 24 25 26 27 28 Defendants. CASE NO.: 1:15-CV-00695-DAD-SKO PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT Plaintiff Glenn McMillan (“Plaintiff”) and Defendants Lowe’s Home Centers, 1 2 LLC (“Lowe’s”) and Gro-Well Brands, Inc. (“Gro-Well Brands”) (collectively, 3 “Defendants”), by their respective counsel, hereby stipulate for the purpose of jointly 4 requesting that the Court enter a protective order regarding the following terms of 5 confidentiality (the “Order”), which shall govern all discovery taken in connection 6 with the above-referenced case (the “Case”). 7 GOOD CAUSE STATEMENT 8 9 The parties believe that they may be required to produce or disclose in the Case, and that non-parties may produce or disclose, information that one or more of them 10 contend contains information of a confidential, commercially sensitive, and/or 11 proprietary nature and that, if disclosed in this action without restriction on its use or 12 further disclosure, it may cause disadvantage, harm, damage and/or loss to the 13 disclosing party or non-parties. Among other things, as part of this action, Plaintiff 14 has requested the production of documents and information regarding customers’ 15 personal information, including names and addresses, and Defendants’ business 16 operations, agreements, and strategies, the public disclosure of which could have an 17 adverse competitive impact on Defendants. The parties further anticipate the 18 possibility that non-party competitor information may be produced or disclosed in the 19 Case. 20 21 The documents that are the subject of the Order include the following categories: 22 (a) Confidential business or commercial information as referenced in Federal 23 Rule of Civil Procedure 26(c)(1)(G)1, including without limitation information 24 relating to specific customer information, financial information, sales records, mulch 25 vendor quotes, proposals or agreements, customer lists, terms of payment, pricing, 26 27 28 1 See FED. R. CIV. P. 26(c)(1)(G) (allowing the Court to issue a protective order, for good cause, “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way”). 1 1 costs, profits, or other sales information for specific equipment, products, or parts, 2 including mulch products. There is a need to protect confidential business or 3 commercial information because it could be abused if not limited to this litigation, 4 including potential use by third party competitors. There is also the risk of violation 5 of privacy or consumer protection laws. 6 (b) Confidential commercial research or development as referenced in 7 Federal Rule of Civil Procedure 26(c)(1)(G), including without limitation production 8 summaries, process development and troubleshooting, complaint handling, field 9 reports, or other technical development data or information. Such confidential 10 commercial research or development information should be protected because it could 11 be abused by third-party competitor retailers or manufacturers, and may reveal 12 Defendants’ past and future confidential business and sourcing strategies. Such 13 material may also contain private contact information of individual purchasers who 14 participated in Defendants’ commercial research or development. 15 (c) Personnel files and other private or confidential employment records or 16 information. See Board of Trustees v. Superior Court, 119 Cal. App. 3d 516, 526 17 (1981) (stating it is “manifest” that the personnel, tenure, and promotion files of a 18 professor are private and maintained in confidence). There is a need to protect such 19 information because employee records are maintained in confidence by Defendants. 20 Public dissemination of Defendants’ employee information would undermine the 21 privacy rights of Defendants’ employees and potentially reveal to competitors 22 Defendants’ confidential business strategies regarding management of personnel and 23 employee promotions. 24 (d) Information subject to a separate protective order or confidentiality 25 agreement. There is a need for protection of material relevant to this case that is 26 subject to other confidentiality agreements to which Defendants are parties, and which 27 mandate that Defendants make efforts to ensure that the material be disclosed only 28 under conditions in which the confidentiality can be maintained. Furthermore, 2 1 discovery in this Case is likely to overlap with the substantially similar matter, Joseph 2 v. Lowe’s Home Centers, LLC, et al., N.D. Ill. Case No. 1:14-cv-03866, and a 3 protective order governing discovery in this Case would facilitate agreements among 4 the parties in both matters to allow them to limit the dissemination of their respective 5 sensitive business and personal information. 6 The parties further believe that the need for protection should be addressed by a 7 Court order, as opposed to a private agreement between and among the parties, to 8 facilitate the orderly and efficient discovery of relevant information while minimizing 9 the potential for unauthorized disclosure or use of confidential, commercially 10 sensitive, and/or proprietary information. The parties also believe that a Court order, 11 as opposed to a private agreement, would facilitate the proper enforcement of the 12 stipulated protective order and confidentiality agreement entered in the substantially 13 similar litigation Joseph v. Lowe’s Home Centers, LLC, et al., currently pending in the 14 Northern District of Illinois, Case No. 14-cv-3866 (Dkt. 129). In addition, the parties 15 would like the ability to request that the Court rule on challenges to a party’s 16 confidentiality designation. The proposed protective order provides mechanisms for 17 resolution of disputes and handling of designated evidence that involve the Court. 18 Finally, in the parties’ experience, a court-sanctioned protective order provides 19 additional comfort and protections to third parties that may be asked to produce 20 sensitive information in the Case. 21 1. 22 Purposes and Limitations 1.1. Disclosure and discovery activity in this action are likely to involve 23 production of confidential, proprietary, or private information for which special 24 protection from public disclosure and from use for any purpose other than prosecuting 25 this litigation would be warranted. The parties acknowledge that this Stipulation and 26 Order does not confer blanket protections on all disclosures or responses to discovery 27 and that the protection it affords extends only to the limited information or items that 28 are entitled, under the applicable legal principles, to treatment as confidential. The 3 1 parties further acknowledge, as set forth in Section 4.7, below, that this Stipulated 2 Protective Order does not entitle them to file confidential information under seal; Civil 3 Local Rule 141 sets forth the procedures that must be followed and the standards that 4 will be applied when a party seeks privacy and permission from the court to file 5 material under seal. 6 2. 7 Confidential Information and Attorney’s Eyes Only Information 2.1. For purposes of this Order, “Confidential Information” means the 8 specified categories of information listed above under (a)-(d) that qualify for 9 protection under Federal Rule of Civil Procedure 26(c), including non-public, 10 confidential or proprietary financial, technical, commercial, or personal information 11 that is contained or disclosed in any materials governed by this Order and designated 12 by a producing party or person in accordance with the procedures set forth in Section 13 3 of this Order. 14 2.2. For purposes of this Order, “Attorney’s Eyes Only Information” means 15 Confidential Information as defined in Section 2.1 above, the disclosure of which to 16 any party or that party’s personnel, other than the party or the personnel of the party 17 producing or designating it, is likely to cause substantial and irreparable injury to the 18 business of the producing or designating party or person. Attorney’s Eyes Only 19 Information may include sensitive trade secrets, marketing plans, financial data, 20 strategic plans, market analysis, product information, product development data, 21 customer information, technical data, and/or other information contained or disclosed 22 in any materials governed by this Order and designated in good faith by a producing 23 party or person in accordance with the procedures set forth in Section 3 of this Order. 24 2.3. When used in this Order, the word “document” encompasses all written 25 material, video, audio or other data record, deposition testimony, written discovery 26 responses, and all other information and tangible items, whether produced as hard 27 copy, electronic document, computer diskette, CD-ROM or otherwise. 28 3. Designation of Confidential Information or Attorney’s Eyes Only 4 1 Information 2 3.1. Any document, including any part thereof, a producing party (hereinafter 3 “Producing Party,” which term shall include third parties producing a document for 4 purposes of this Case) reasonably believes falls within the definition set forth in 5 paragraph(s) 2.1 and/or 2.2 above may be designated by Counsel for a Producing 6 Party as Confidential Information by marking “CONFIDENTIAL,” or as Attorney’s 7 Eyes Only Information by marking “ATTORNEY’S EYES ONLY,” on the face of 8 every page of the document or, if not feasible, in a conspicuous location in the name 9 of the electronic file. A Producing Party that so designates a document is referred to 10 11 below as the “Designating Party” for such. 3.2. Counsel for a Producing Party may designate any or all of a deponent’s 12 deposition testimony as Confidential Information or Attorney’s Eyes Only 13 Information by making a statement to that effect on the record while the deposition is 14 being taken. Alternatively, counsel for a Producing Party may designate the transcript 15 of a deposition as containing Confidential Information or Attorney’s Eyes Only 16 Information by notifying counsel for all parties in writing, within thirty (30) business 17 days of receipt of the transcript, of the specific pages and lines of the transcript that 18 contain Confidential Information or Attorney’s Eyes Only Information. All deposition 19 transcripts shall be treated as Attorney’s Eyes Only Information and subject to this 20 Order until thirty (30) business days after a transcript of the deposition is received. 21 Any portion of any deposition testimony that is not designated as containing 22 Confidential Information or Attorney’s Eyes Only Information in accordance with this 23 Section 3.2 shall not be entitled to the protection afforded under this Order. 24 3.3. When Confidential Information or Attorney’s Eyes Only Information is 25 designated during a deposition, the designating party shall instruct the court reporter 26 to make the following notations in the deposition transcript: 27 (a) on the first page of the transcript, “This transcript contains 28 CONFIDENTIAL [and/or ATTORNEY’S EYES ONLY] 5 Information”; and 1 (b) on each page containing Confidential Information or Attorney’s 2 3 Eyes Only Information, the notation “CONFIDENTIAL” (for 4 Confidential Information) or “ATTORNEY’S EYES ONLY” (for 5 Attorney’s Eyes Only Information). 6 3.4. There shall be no obligation to challenge a designation of a document as 7 Confidential Information or Attorney’s Eyes Only Information contemporaneous to 8 such designation being made, and failure to do so shall not preclude a subsequent 9 challenge. 10 3.5. A party opposing the designation of a document as Confidential 11 Information or Attorney’s Eyes Only Information shall state the objections, including 12 the grounds for the objection, in a letter to the designating party, within a reasonable 13 time after receiving the document. The Designating Party shall have ten (10) business 14 days following the receipt of the objection to withdraw its Confidential Information or 15 Attorney’s Eyes Only Information designation. If the Confidential Information or 16 Attorney’s Eyes Only Information designation is not withdrawn, the opposing party 17 may thereafter apply to this Court for a ruling that the information or materials shall 18 not be so designated. The burden shall be on the party designating the information as 19 Confidential Information or Attorney’s Eyes Only Information to establish, based 20 upon a showing of good cause, that the material reasonably meets the criteria set forth 21 in Section(s) 2.1 and/or 2.2 of this Order. If the Court determines that the designating 22 party has not made such a showing, the information shall no longer be treated as 23 Confidential Information or Attorney’s Eyes Only Information unless such Order of 24 the Court is stayed pending appeal. 25 3.6. An interested member of the public has the right to challenge the sealing 26 of particular documents that have been filed under seal, and the party asserting 27 confidentiality will have the burden of demonstrating the propriety of filing under 28 seal. 6 1 4. Restricted Use of Confidential Information and Attorney’s Eyes Only 2 Information 3 4.1. Except upon the prior written consent of counsel for the Designating 4 Party, each document designated as Confidential Information and Attorney’s Eyes 5 Only Information must be treated strictly in accordance with this Order, may be used 6 or disclosed only as specified in this Order, shall not be disclosed or revealed to 7 anyone not authorized by this Order to receive it, and shall be used only for the 8 litigation of the Case. Any document so designated shall not be used for any other 9 purpose, including in connection with the investigation, instigation, or prosecution of 10 11 any other unrelated litigation. 4.2. Attorney’s Eyes Only Information, and any analysis or report containing 12 Attorney’s Eyes Only Information, may be disclosed only to: (a) the Court and its 13 personnel; (b) a mediator, and paralegal, secretarial, and clerical personnel who are 14 employed by the mediator to assist in such proceeding, who have executed a 15 Confidentiality Undertaking in the form attached as Exhibit A (a “Confidentiality 16 Undertaking”); (c) counsel of record in the Case, as well as their paralegal, 17 investigative, secretarial and clerical personnel who are employed by and engaged in 18 assisting such counsel in this proceeding; (d) court reporters and videographers 19 retained in connection with depositions; (e) other non-party support service including, 20 but not limited to, professional jury or trial consultants, and professional vendors 21 providing litigation support services, copy services, document processing, and trial 22 graphics services, who have executed a Confidentiality Undertaking; (f) independent 23 testifying or non-testifying experts and their support staff retained to furnish expert or 24 technical services or to give expert testimony in connection with the Case, who are not 25 otherwise affiliated with a party and who have executed a Confidentiality 26 Undertaking; (g) non-independent experts and their support staff retained to furnish 27 expert or technical services or to give expert testimony in connection with the Case, 28 who have executed a Confidentiality Undertaking; and (h) such other persons as the 7 1 parties may designate in writing by stipulation between the parties, provided, 2 however, that before such person is shown or receives any information or document 3 designated as confidential, they agree to be subject to the terms of this Stipulated 4 Protective Order in writing by signing the Confidentiality Undertaking. 5 4.3. Confidential Information and any analysis or report containing 6 Confidential Information may be disclosed only to: (a) the persons entitled to receive 7 Attorney’s Eyes Only Information; (b) in-house counsel for any Party; (c) Plaintiff 8 and the corporate representatives (officers, directors or management) of Lowe’s and 9 Gro-Well Brands with responsibility for making business decisions dealing with 10 litigation of the Case, who have executed a Confidentiality Undertaking; and (d) fact 11 witnesses and their counsel during the course of and in preparation for a deposition 12 and/or testimony in the Case, but only if counsel who discloses Confidential 13 Information to the witness determines, in good faith, that such disclosure is reasonably 14 necessary and appropriate to assist in preparation for and conduct of the Case and the 15 witness to whom disclosure is made executes the Confidentiality Undertaking. 16 4.4. Counsel for each party shall maintain copies of Confidentiality 17 Undertakings signed by those people to whom Confidential Information is disclosed 18 in whole or in part. The signed Confidentiality Undertakings shall be available for 19 inspection by counsel for each Producing Party upon reasonable notice, except that no 20 party shall be required to disclose the name of any retained expert or consultant except 21 as required by Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure. Any 22 individual to whom counsel for the parties makes a disclosure, pursuant to this Order, 23 of Confidential Information or Attorney’s Eyes Only Information must be advised of, 24 and become subject to, the provisions of this Order requiring that the documents and 25 information be held in confidence. 26 4.5. A party may disclose Attorney’s Eyes Only Information to any person 27 not permitted to receive it under Section 4.2, or any Confidential Information to any 28 person not permitted to receive it under Section 4.3, only as set forth in this paragraph. 8 1 The attorney for the party wishing to disclose the Attorney’s Eyes Only Information 2 or the Confidential Information shall notify counsel for the Producing Party in writing 3 and prior to any such disclosure of: (a) the specific information, documents and/or 4 testimony proposed to be disclosed and (b) the person(s) to whom such disclosure is 5 proposed to be made. The parties then shall negotiate, in good faith, to reach an 6 agreement regarding such disclosure. If such an agreement cannot be reached on the 7 proposed disclosure, the party seeking to disclose Confidential Information or 8 Attorney’s Eyes Only Information shall make an appropriate motion to the Court. The 9 party seeking to disclose the Attorney’s Eyes Only Information or the Confidential 10 Information shall bear the burden of showing that the proposed disclosure is 11 necessary. The Court will rule as to whether the proposed disclosure may be made 12 and whether any restrictions or limitations should be placed on such disclosure. 13 Unless or until the Court rules otherwise, such information may not be disclosed, 14 except as set forth in paragraphs 4.2 and 4.3. 15 4.6. The inadvertent failure by the Producing Party or person to designate a 16 document as Confidential Information or Attorney’s Eyes Only Information shall not 17 be deemed a waiver in whole or in part of the Producing Party’s claims of 18 confidentiality, either as to the material produced or as to the information it contains. 19 Promptly upon discovering its inadvertent error, the Producing Party or person shall 20 notify the receiving party in writing of the error, and within ten (10) days of receipt of 21 notice the receiving party shall either (a) mark all copies of the specified materials 22 with the appropriate legend, (b) destroy the unmarked copies, or (c) return the 23 unmarked copies to the Producing Party or person for marking. If returned to the 24 Producing Party for marking, the Producing Party shall return the marked copies to 25 the receiving party within five (5) business days. The production or conspicuous use, 26 in a deposition or otherwise in the presence of counsel for a Producing Party, of a 27 document inadvertently not designated under section 2.1 or 2.2 above shall not 28 constitute discovery or notice of such inadvertent failure to so designate or otherwise 9 1 2 prejudice the Producing Party’s ability to so designate at that time. 4.7. Documents containing Confidential Information or Attorney’s Eyes Only 3 Information need not be filed with the Clerk except when required in connection with 4 Motions under Federal Rules of Civil Procedure 12 or 56 or other matters pending 5 before the Court, as set forth in this paragraph. Without written permission from the 6 Designating Party or a court order secured after appropriate notice to all interested 7 persons, a Party may not file in the public record in this action any Confidential 8 Information or Attorney’s Eyes Only Information. A Party that seeks to file under 9 seal any Confidential Information or Attorney’s Eyes Only Information must comply 10 with Civil Local Rule 141. Confidential Information or Attorney’s Eyes Only 11 Information may only be filed under seal pursuant to a court order authorizing the 12 sealing of the specific Confidential Information or Attorney’s Eyes Only Information 13 at issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a 14 request establishing that the Confidential Information or Attorney’s Eyes Only 15 Information at issue is privileged, protectable as a trade secret, or otherwise entitled to 16 protection under the law. 17 4.8. Any party wishing to use Confidential Information and Attorney’s Eyes 18 Only Information in the trial or in any hearing in the Case shall notify the other parties 19 of its desire to do so reasonably in advance of the trial or hearing at which the party 20 wishes to use the information. For trial, this notification must occur no later than the 21 date the pre-trial order is due or one-month prior to trial, whichever period is longer. 22 For a hearing, this notification must occur not later than two-weeks before the hearing. 23 The parties shall negotiate, in good faith, to reach an agreement on the use of such 24 Confidential Information or Attorney’s Eyes Only Information, including restrictions 25 on the manner in which such information may be used, as necessary to protect the 26 confidentiality of the information. If the parties cannot reach an agreement on the use 27 of the information, the party seeking to use the information must notify the Court of 28 its desire to use the information. The information may be used only in the discretion 10 1 of the Court, subject to restrictions imposed by the Court to protect confidentiality of 2 the information. 3 4.9. In the event that a party is ordered or requested to produce or disclose 4 any document(s) designated as Confidential Information or Attorney’s Eyes Only 5 Information, through a subpoena in another action, a demand in another action to 6 which it is a party, or any other legal process served by a person not a party to the 7 Case, the party served with the subpoena, demand, or other legal process shall object 8 to production of the Confidential Information or Attorney’s Eyes Only Information 9 and shall give prompt written notice to the Producing Party within five (5) days of 10 receiving the request or order. If the non-party seeking access to the Confidential 11 Information or Attorney’s Eyes Only Information takes action against the party to 12 enforce such a subpoena, demand, or other legal process, the party shall respond by 13 noting the existence of this Order. Nothing in this Order requires a party to challenge 14 or appeal any order requiring production of Confidential Information or Attorney’s 15 Eyes Only Information; to subject itself to any penalties for noncompliance with any 16 subpoena, demand, legal process, or order; or to seek any relief from this Court. 17 5. 18 Third-Party Materials 5.1. Non-parties from whom documents and testimony are sought shall be 19 entitled to designate materials as Confidential Information or Attorney’s Eyes Only 20 Information in accordance with this Order. Furthermore, in order to give the parties to 21 the Case adequate opportunity to designate the parties’ respective Confidential 22 Information or Attorney’s Eyes Only Information contained within materials received 23 from the non-parties, all documents and materials produced by a non-party shall be 24 treated as follows: 25 5.2. All materials produced by the non-party shall be treated as Attorney’s 26 Eyes Only Information material for a period of thirty (30) business days from the 27 receipt by all parties of the production; 28 5.3. At any time on or before the thirtieth business day from receipt of the 11 1 production, any party to the Case may specifically designate materials produced by 2 the non-party as the party deems appropriate pursuant to this Order (namely as 3 Confidential Information or Attorney’s Eyes Only Information). A party who 4 designates the non-party materials must promptly notify in writing all other parties to 5 the Case of such designation and must promptly include a copy of the non-party 6 materials, properly marked with such notification. Once non-party materials have been 7 specifically designated as Confidential Information or Attorney’s Eyes Only 8 Information pursuant to this Section, the remaining provisions of this Order 9 concerning use and restrictions on such Confidential Information or Attorney’s Eyes 10 Only Information shall apply; 11 5.4. Any materials produced by a non-party that have not been specifically 12 designated as Confidential Information or Attorney’s Eyes Only Information by the 13 non-party itself or by a party within the thirty-day period will lose their temporary 14 status as Attorney’s Eyes Only Information and will have no designation, subject to 15 the provisions of Section 4.6 of this Order. 16 6. 17 Conclusion of the Case 6.1. Upon final conclusion of the Case, all persons to whom Confidential 18 Information or Attorney’s Eyes Only Information has been disclosed shall, without 19 demand, either destroy or return to the party that produced it all such Confidential 20 Information and Attorney’s Eyes Only Information (and all copies thereof), except 21 that the party’s outside counsel identified in Section 4.2(b) may retain copies of 22 pleadings, briefs, motions and the like that include Confidential Information or 23 Attorney’s Eyes Only Information. All recipients of Confidential Information and 24 Attorney’s Eyes Only Information shall certify in writing that they have complied 25 with the provisions of this Section 6.1. 26 6.2. Upon final conclusion of the Case, (a) any Confidential Information and 27 Attorney’s Eyes Only Information that has been submitted for identification or into 28 evidence in the trial or in any hearing in the Case may be retrieved by counsel for the 12 1 Producing Party or the party that submitted it for identification or into evidence; (b) 2 the Clerk is authorized to deliver said Confidential Information or Attorney’s Eyes 3 Only Information to that counsel; and (c) any such Confidential Information or 4 Attorney’s Eyes Only Information not returned to counsel for the Producing Party 5 shall be destroyed. 6 7 6.3. full force and effect. The Court shall retain jurisdiction to enforce this Order. 8 9 This Order shall survive the final conclusion of the Case and continue in 6.4. Under no circumstances shall a party be required to produce documents or reveal information that it considers Confidential Information or Attorney’s Eyes 10 Only Information until any disputes about such documents or information have been 11 resolved. 12 6.5. Compliance with the terms of this Order shall not be deemed an 13 admission that any documents or information are admissible in evidence and shall not 14 constitute a waiver of any evidentiary or other objections. Entering into, agreeing to, 15 and/or complying with the terms of this Order shall not (a) operate as an admission by 16 any party that any document or material designated by any other party as Confidential 17 Information or Attorney’s Eyes Only Information contains or reflects proprietary, 18 Confidential Information, or Attorney’s Eyes Only Information, (b) constitute or be 19 deemed to constitute a waiver of the attorney-client privilege, the attorney work 20 product doctrine, or any other applicable privilege or protection, or (c) prejudice in 21 any way the right of any party (i) to seek determination by the Court as to whether any 22 particular document or material is Confidential Information or Attorney’s Eyes Only 23 Information or (ii) to seek relief from any provision of this Order, either generally or 24 with respect to any particular Confidential Information or Attorneys’ Eyes Only 25 Information. 26 7. 27 28 Enforcement 7.1. If any person bound by this Order violates its terms or threatens to violate its terms, the Producing Party shall apply to the Court to obtain relief against such 13 1 person. If the Producing Party seeks injunctive relief, it must petition the Court for 2 such relief, which may be granted in the discretion of the Court. 3 7.2. This Court shall retain jurisdiction over this Order and the parties to this 4 Order, including any person who agrees to be bound by this Order by executing 5 Exhibit A, for purposes of enforcing this Order. 6 8. 7 Privilege 8.1. If, in connection with the Case, a party produces information that the 8 party thereafter claims to be privileged or protected by the attorney-client privilege or 9 attorney work product protection (“Disclosed Protected Information”), the producing 10 party shall promptly notify the receiving party, in writing, of the producing party’s 11 claim of attorney-client privilege or work product protection with respect to such 12 Disclosed Protected Information. If this notice is provided (1) at least 60-days prior to 13 the parties’ submission of final pretrial memoranda, or (2) within 14-days of the 14 production of the Disclosed Protected Information, then, pursuant to Fed. R. Evid. 15 502(d), the disclosure of the Disclosed Protected Information shall not constitute or be 16 deemed a waiver or forfeiture of any claim of privilege or work product protection 17 that the producing party would otherwise be entitled to assert with respect to the 18 Disclosed Protected Information and its subject matter. Otherwise, the disclosure of 19 the Disclosed Protected Information shall be governed by Fed. R. Evid. 502(b). 20 8.2. The receiving party must—unless it contests the claim of attorney-client 21 privilege or work product protection in accordance with paragraph 8.3—within five 22 (5) business days of receipt of that writing, (i) return or destroy all copies of the 23 Disclosed Protected Information, and (ii) provide a certification of counsel that all of 24 the Disclosed Protected Information has been returned or destroyed. 25 8.3. If the receiving party contests the claim of attorney-client privilege or 26 work product protection, the receiving party must—within fifteen (15) days of receipt 27 of the claim of disclosure—move the Court for an Order compelling disclosure of the 28 Disclosed Protected Information (a “Disclosure Motion”). The Disclosure Motion 14 1 must be filed under seal and must not assert as a ground for compelling disclosure the 2 fact or circumstances of the disclosure. Pending resolution of the Disclosure Motion, 3 the receiving party must not use the Disclosed Protected Information or disclose it to 4 any person other than those required by law to be served with a copy of the sealed 5 Disclosure Motion. 6 7 8.4. paragraphs (8.2) and (8.3). 8 9 The parties may stipulate to extend the time periods set forth in 8.5. Disclosed Protected Information that is sought to be reclaimed by the parties to this case pursuant to this Order shall not be used as grounds by any third 10 party to argue that any waiver of privilege or protection has occurred by virtue of any 11 production in this case. Nothing in this Order overrides any attorney’s ethical 12 responsibilities to refrain from examining or disclosing materials that appear on their 13 face to be privileged and to disclose to the Disclosing Party that such materials have 14 been produced. 15 8.6. The Disclosing Party retains the burden of establishing the privileged or 16 protected nature of the Disclosed Protected Information. Nothing in this paragraph 17 shall limit the right of any party to petition the Court for an in camera review of the 18 Disclosed Protected Information. 19 9. 20 Miscellaneous 9.1. Nothing herein shall be construed to prevent any party from using or 21 continuing to use any information that is in the public domain or that subsequently 22 becomes a part of the public domain other than as a result of any act of such party or 23 of disclosure in violation of this Order. Nothing herein shall be construed to prevent a 24 party from using or continuing to use any documents or information known to it or 25 used by it prior to the filing of this Order or that has come or shall come into a party’s 26 possession independently of disclosure and/or discovery in this Case, except in 27 accordance with any pre-existing limits attached to those documents or information. 28 9.2. Nothing contained in this Order shall be construed to limit any party’s 15 1 rights (a) to use, in taking depositions of a party, its employees, former employees or 2 its experts or in briefs or at trial or in any proceeding in this litigation, any information 3 designated Confidential or Attorney’s Eyes Only Information of that party, or (b) to 4 disclose Confidential or Attorney’s Eyes Only Information to any witness at a 5 deposition or at trial who either wrote (in whole or in part), received, or lawfully has 6 or had rightful access to such information, except that such witness must execute the 7 Confidentiality Undertaking. In addition, a witness may be shown any document that 8 contains or reveals Confidential or Attorney’s Eyes Only Information if the witness 9 (a) is a 30(b)(6) witness testifying on behalf of the Producing Party, (b) is a present 10 officer, director or employee of the Producing Party, (c) was an officer or director of 11 the Producing Party at the time the document was sent and/or created, had access to 12 the document while an officer or director, and who has executed a Confidentiality 13 Undertaking, (d) was an employee of the Producing Party at the time the document 14 was sent and/or created an is not then-employed by a competitor of the Producing 15 Party, or (e) was an employee of the Producing Party at the time the document was 16 sent and/or created whose duties or position while with the Producing Party would 17 have provided access to the type of Confidential or Attorney’s Eyes Only Information 18 at issue. Before any person listed in this section may be shown any document that 19 contains or reveals Confidential or Attorney’s Eyes Only Information, the witness 20 must execute the Confidentiality Undertaking. 21 9.3. Nothing in this Order shall prevent a party from attempting to examine as 22 witnesses, during depositions or at trial, persons not authorized to receive documents 23 designated as Confidential or Attorney’s Eyes Only Information, as identified herein, 24 if the examination concerns a document that the witness previously had actual lawful 25 access to or prior knowledge of as demonstrated by the document itself or by 26 foundation testimony, so long as the witness executes the Confidentiality 27 Undertaking. Nor shall this Order prevent counsel from examining a witness to 28 determine whether he or she has prior knowledge of Confidential or Attorney’s Eyes 16 1 Only Information, so long as such examination shall be in a manner that does not 2 disclose the details of the designated documents. Any Confidential or Attorney’s 3 Eyes Only Information so used shall not lose its confidential status through such use 4 and its confidentiality shall be protected in conformance with this Order. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 1 Dated: January 6, 2017 2 Respectfully submitted, By: /s/ Thomas A. Zimmerman, Jr. 3 ZIMMERMAN LAW OFFICES, P.C. Thomas A. Zimmerman, Jr. (pro hac vice) Matthew C. De Re (pro hac vice) 77 West Washington Street, Suite 1220 Chicago, Illinois 6060 4 5 6 7 - and - 8 9 LAW OFFICES OF TODD M. FRIEDMAN, P.C. Todd M. Friedman 324 South Beverly Drive #725 Beverly Hills, California 90211 10 11 12 Counsel for Plaintiff Glenn McMillan 13 14 15 Dated: January 6, 2017 Respectfully submitted, 16 17 By: /s/ Eric M. Roberts 20 DLA PIPER LLP (US) Todd M. Noonan 400 Capitol Mall, Suite 400 Sacramento, California 95814-4428 21 -and- 22 Raj N. Shah (pro hac vice) Roger L. Longtin (pro hac vice) Eric M. Roberts (pro hac vice) 203 North LaSalle Street, Suite 1900 Chicago, Illinois 60601-1293 18 19 23 24 25 26 27 Counsel for Defendant Gro-Well Brands, Inc. 28 18 1 Dated: January 6, 2017 Respectfully submitted, 2 By: /s/ Phillip J. Eskenazi 3 6 HUNTON & WILLIAMS LLP Phillip J. Eskenazi (SBN 158976) 550 S. Hope Street, Suite 2000 Los Angeles, California 90071 7 - and - 4 5 8 Neil K. Gilman (pro hac vice) 2200 Pennsylvania Ave NW Washington DC 20037 9 10 11 Counsel for Defendant Lowe’s Home Centers, LLC 12 13 14 IT IS SO ORDERED. 15 16 Dated: January 30, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 19 . 1 2 3 4 5 6 7 HUNTON & WILLIAMS LLP Phillip J. Eskenazi (SBN 158976) peskenazi@hunton.com Neil K. Gilman (admitted pro hac vice) ngilman@hunton.com 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 Attorneys for Defendants LOWE’S HOME CENTERS, LLC 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 GLENN McMILLAN, individually, and on behalf of all others similarly situated, Plaintiff, 13 14 15 16 17 18 v. LOWE’S HOME CENTERS, LLC, a North Carolina limited liability company, and GRO-WELL BRANDS, INC., a Delaware corporation, 19 20 21 22 23 24 25 26 27 28 Defendants. CASE NO.: 1:15-CV-00695-DAD-SKO CONFIDENTIALITY UNDERTAKING 1 I acknowledge that I have been given access to, or may be given access to, 2 certain information, materials, documents, or testimony that a party in the above- 3 referenced litigation (the “Case”) considers Confidential Information or Attorney’s 4 Eyes Only Information. I have received a copy of the Protective Order in the Case. I 5 have read the Protective Order, I understand the terms of the Protective Order, and I 6 agree to be bound by the terms of the Protective Order. I understand that the 7 Protective Order, among other things, prohibits me from disclosing any Confidential 8 Information to any person not permitted to receive it under Section 4.3 of the 9 Protective Order, and prohibits me from disclosing any Attorney’s Eyes Only 10 Information to any person not permitted to receive it under Section 4.2 of the 11 Protective Order, unless the person is a member of my staff allowed to have access to 12 the information under the Protective Order, in which case I will inform that person of 13 the contents of the Protective Order and will take all steps necessary to ensure that that 14 person preserves the confidentiality of the information. 15 16 Dated:______________ Signature: _________________________ 17 Print Name: _________________________ 18 Address: _________________________ 19 _________________________ 20 21 22 23 24 25 26 27 28 23797.001821 EMF_US 63239272v1 1

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