Jones v. Wal-Mart Stores Inc

Filing 17

PROTECTIVE ORDER signed by Magistrate Judge Stanley A. Boone on 4/21/2016. (Hernandez, M)

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UNITED STATES DISTRIC COURT

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EASTERN DISTRICT OF CALIFORNIA-FRESNO DIVISION

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ROD JONES,

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Plaintiff,
v.

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STIPULATED PROTECTIVE ORDER
AND ORDER

WAL-MART STORES, INC., and DOES 1
through 50, inclusive,

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Defendants.

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Case No. 1:15-CV-01628-DAD-SAB

The parties hereto stipulate to the following protective order:
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PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of confidential,

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proprietary, or private information for which special protection from public disclosure and from use

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for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties

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hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The

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parties acknowledge that this Order does not confer blanket protections on all disclosures or responses

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to discovery and that the protection it affords from public disclosure and use extends only to the

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limited information or items that are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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Protective Order creates no entitlement to file confidential information under seal; Civil Local Rule

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141 sets forth the procedures that must be followed and reflects the standards that will be applied
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when a Party seeks permission from the court to file material under seal.

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2.

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DEFINITIONS
2.1

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and respective counsel (and their support staff).

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2.2

Disclosure or Discovery Material: all items or information, regardless of the medium or

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manner generated, stored, or maintained (including, among other things, testimony, transcripts, or

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tangible things) that are produced by a party to this action or generated by a Party to this action in

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disclosures or responses to discovery in this matter.

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2.3

“Confidential” Information or Items: information (regardless of how generated, stored

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or maintained) or tangible things that concern Wal-Mart Stores, Inc., may include but are not limited

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to, materials relating to any privileged, confidential, or nonpublic information, including, but not

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limited to trade secrets, research, design, development, financial, technical, marketing, planning,

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personal, or commercial information; contracts; proprietary information; vendor agreements;

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personnel files; claim/litigation information; or certain policies and procedures.

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2.4

Producing Party.

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2.5

2.6.

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Designating Party: a Party or non-Party that designates information or items that it

produces in disclosures or in responses to discovery as “Confidential”.

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Producing Party: a Party or non-Party that produces Disclosure or Discovery Material

in this action.

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Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Protected Material: any Disclosure or Discovery Material that is designated as

“Confidential” but shall not include those same materials or other materials that are lawfully obtained
from a source other than a Party to this action. A Party, however, may apply to the above-titled Court
to designate as Protected Material any information or materials lawfully obtained from a source other
than a Party to this action and which qualifies for protection under Federal Rule of Civil Procedure
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Expert: a person with specialized knowledge or experience in a matter pertinent to the

litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
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consultant in this action and who is not a past or a current employee of a Party or of a competitor of a

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Party and who, at the time of retention, is not anticipated to become an employee of a Party or a

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competitor of a Party. This definition includes a professional jury or trial consultant retained in

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connection with this litigation.

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Professional Vendors: persons or entities that provide litigation support services (e.g.,

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photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing,

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retrieving data in any form or medium; etc.) and their employees and subcontractors.

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2.10 House Counsel: attorneys who are employees of a Party to this action. House Counsel
does not include Outside Counsel of Record or any other outside counsel.

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2.11

Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.

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2.12 Outside Counsel of Record: attorneys who are not employees of a Party to this action but

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are retained to represent or advise a Party to this action and have appeared in this action on behalf of

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that Party or are affiliated with a law firm which has appeared on behalf of that Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected Material (as

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defined above), but also any information copied or extracted from Protected Material, as well as all

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copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations

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by parties or counsel to or in court or in other settings that might reveal Protected Material. Any use

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of Protected Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after the termination of this litigation, the confidentiality obligations imposed by this

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Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order

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otherwise directs. Final disposition shall be deemed to be the latter of (1) dismissal of all claims and

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defenses in this action, with or without prejudice; and (2) final judgment herein after the completion

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and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time

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limits for filing any motions or applications for extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
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5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party or

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non-Party that designates information or items for protection under this Order must take care to limit

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any such designation to specific material that qualifies under the appropriate standards.

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Designating Party must take care to designate for protection only those parts of material, documents,

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items, or oral or written communications that qualify – so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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If it comes to a Party’s or a non-Party’s attention that information or items that it designated

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for protection do not qualify for protection at all, or do not qualify for the level of protection initially

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asserted, that Party or non-Party must promptly notify all other parties that it is withdrawing the

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mistaken designation.

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5.2.

Manner and Timing of Designations. Except as otherwise provided in this Order (see,

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e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, material that

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qualifies for protection under this Order must be clearly so designated before the material is disclosed

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or produced.

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Designation in conformity with this Order requires:

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(a)

For information in documentary form (apart from transcripts of depositions or other

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pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” on the face

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of the document of each page that contains protected material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion,

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the level of protection being asserted (i.e. “CONFIDENTIAL”). A Party or non-Party that makes

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original documents or materials available for inspection need not designate them for protection until

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after the inspecting Party has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied

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and produced, the Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the Producing Party
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must affix the “CONFIDENTIAL” legend to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party also must

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clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).

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(b)

For testimony given in deposition or in other pretrial or trial proceedings, that the Party

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or non-Party offering or sponsoring the testimony identify on the record, before the close of the

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deposition, hearing, or other proceeding, all protected testimony, and further specify any portions of

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the testimony that qualify as “CONFIDENTIAL”.

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When it is impractical to identify separately each portion of testimony that is entitled to

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protection, and when it appears that substantial portions of the testimony may qualify for protection,

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the Party or non-Party that sponsors, offers, or gives the testimony may invoke on the record (before

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the deposition or proceeding is concluded) a right to have up to 10 (ten) days to identify the specific

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portions of the testimony as to which protection is sought and to specify the level of protection being

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asserted (i.e. “CONFIDENTIAL”).

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designated for protection within the 10 (ten) days shall be covered by the provisions of this Stipulated

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Protective Order.

Only those portions of the testimony that are appropriately

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Transcript pages containing Protected Material must be separately bound by the court reporter,

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who must affix to the bottom of each such page the legend “CONFIDENTIAL” as instructed by the

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Party or non-Party offering or sponsoring the witness or presenting the testimony. The Designating

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Party of any such material shall bear any additional court reporter fees or costs that are caused by the

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designation.

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(c)

For information produced in some form other than documentary, and for any other

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tangible items, that the Producing Party affix in a prominent place on the exterior of the container or

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containers in which the information or item is stored the legend “CONFIDENTIAL”. If only portions

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of the information or item warrant protection, the Producing Party, to the extent practicable, shall

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identify the protected portions, specifying “Confidential”.

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5.3.

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items as “Confidential” does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material. If material is
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appropriately designated as “Confidential” after the material was initially produced, the Receiving

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Party, on timely notification of the designation, must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary

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economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive its

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right to challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer. A Party that elects to initiate a challenge to a Designating Party’s

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confidentiality designation must do so in good faith and must begin the process by conferring directly

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(in voice to voice dialogue or written correspondence) with counsel for the Designating Party. In

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conferring, the challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no change in designation is offered, to

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explain the basis for the chosen designation. A challenging Party may proceed to the next stage of the

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challenge process only if it has engaged in this meet and confer process first.

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6.3

Judicial Intervention. A Party that elects to press a challenge to a confidentiality

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designation after considering the justification offered by the Designating Party may file and serve a

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motion that identifies the challenged material and sets forth in detail the basis for the challenge. Each

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such motion must be accompanied by a competent declaration that affirms that the moving party has

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complied with the meet and confer requirements imposed in the preceding paragraph and that sets

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forth with specificity the justification for the confidentiality designation that was given by the

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Designating Party in the meet and confer dialogue.

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The burden of persuasion in any such challenge proceeding shall be on the Designating Party.

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Until the court rules on the challenge, all parties shall continue to afford the material in question the

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level of protection to which it is entitled under the Producing Party’s designation.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
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7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed or

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produced by another Party or by a non-Party in connection with this case only for prosecuting,

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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the

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categories of persons and under the conditions described in this Order. When the litigation has been

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terminated, a Receiving Party must comply with the provisions of Section 11, below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by

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the court or permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated CONFIDENTIAL only to:

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(a)

the Receiving Party’s Outside Counsel of record in this action, as well as employees of

said Counsel to whom it is reasonably necessary to disclose the information for this litigation;
(b)

the employees of the Receiving Party to whom disclosure is reasonably necessary for

this litigation;
(c)

experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by

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Protective Order” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters, their staffs, and professional vendors to whom disclosure is reasonably

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necessary for this litigation;
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during their depositions, witnesses in the action to whom disclosure is reasonably

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necessary. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material must be separately bound by the court reporter and may not be disclosed to anyone except as

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permitted under this Stipulated Protective Order. The party designating any material in the deposition

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“CONFIDENTIAL” shall bear any additional court reporter fees or costs that are caused by the

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designation.

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(g)

the author of the document or the original source of the information.
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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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If a Receiving Party is served with a subpoena or an order issued in other litigation that would

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compel disclosure of any information or items designated in this action as “CONFIDENTIAL,” the

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Receiving Party must so notify the Designating Party, in writing (by facsimile, if possible)

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immediately and in no event more than three court days after receiving the subpoena or order. Such

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notification must include a copy of the subpoena or court order.

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The Receiving Party also must immediately inform in writing the Party who caused the

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subpoena or order to issue in the other litigation that some or all the material covered by the subpoena

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or order is the subject of this Protective Order. In addition, the Receiving Party must deliver a copy of

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this Stipulated Protective Order promptly to the Party in the other action that caused the subpoena or

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order to issue.

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If the Designating Party timely seeks a protective order, the Party served with the subpoena or

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court order shall not produce any information designated in this action as “CONFIDENTIAL” before

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a determination by the court from which the subpoena or order issued, unless the Party has obtained

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the Designating Party’s permission. The purpose of imposing these duties is to alert the interested

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parties to the existence of this Protective Order and to afford the Designating Party in this case an

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opportunity to try to protect its confidentiality interests in the appropriate court. The Designating

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Party shall bear the burdens and the expenses of seeking protection in that court of its confidential

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material – and nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this action to disobey a lawful directive from another court.

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9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective Order,

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the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d)

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request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is
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attached hereto as Exhibit A.

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10.

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FILING PROTECTED MATERIAL.
Without written permission from the Designating Party, Protected Material shall be filed

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pursuant to Civil Local Rule 141.

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11.

FINAL DISPOSITION.

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Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days after

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the final termination of this action, each Receiving Party must return all Protected Material to the

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Producing Party. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries or any other form of reproducing or capturing any of the Protected Material.

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With permission in writing from the Designating Party, the Receiving Party may destroy some or all

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of the Protected Material instead of returning it. Whether the Protected Material is returned or

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destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not

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the same person or entity, to the Designating Party) by the sixty day deadline that identifies (by

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category, where appropriate) all the Protected Material that was returned or destroyed and that affirms

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that the Receiving Party has not retained any copies, abstracts, compilations, summaries or other

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forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision,

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Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal

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memoranda, correspondence or attorney work product, even if such materials contain Protected

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Material. Any such archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4, above.

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12.

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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.

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12.2

Right to Assert Other Objections. By stipulating to the entry of this Protective Order no

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Party waives any right it otherwise would have to object to disclosing or producing any information or

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item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any

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right to object on any ground to use in evidence of any of the material covered by this Protective

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Order.
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12.3

Filing Protected Material. Without written permission from the Designating Party or a

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court order secured after appropriate notice to all interested persons, a Party may not file in the public

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record in this action any Protected Material. Protected Material may only be filed under seal pursuant

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to a court order authorizing the sealing of the specific Protected Material at issue.

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12.4

Nothing in this Order shall be construed as an admission as to the relevance,

authenticity, foundation or admissibility of any document, material, transcript or other information.

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IT IS SO STIPULATED BY AND BETWEEN THE PARTIES THROUGH THEIR COUNSEL

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OF RECORD:

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Dated: _April 6________, 2016

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By: _/s/ Michael R. Dennis ___________
Michael R. Dennis
Crabtree Schmidt
Attorneys for Plaintiff
ROD JONES

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Dated: __April 18_______, 2016

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By: _/s/ Gregory L. Spallas_____________
Gregory L. Spallas
Anna C. Gehriger
Phillips, Spallas & Angstadt LLP
Attorneys for Defendant
WAL-MART STORES, INC.

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Any documents and other information designated as Confidential Information pursuant hereto

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will not be automatically sealed as the parties must comply with the requirements of Local Rule 141

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of the Eastern District of California before any sealing is considered.

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IT IS SO ORDERED.

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Dated:

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April 21, 2016
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________, of _________________________, declare under

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penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order agreed

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upon by the parties in the action styled Rod Jones, et al. v. Wal-Mart Stores, Inc.. et al., Case No.

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1:15-CV-01628-DAD-SAB.

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I agree to comply with and to be bound by all the terms of this Stipulated Protective Order

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unless and until modified by any court Order. I understand and acknowledge that failure to so comply

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could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Stipulated Protective Order

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to any person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the courts in and for the state of California for

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the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement

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proceedings occur after termination of this action.

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Date: ________________

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City and State where sworn and signed: _________________________________

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Print Name: ______________________________

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Signature: ________________________________

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