Davies v. Lowes Home Improvement LLC

Filing 30

PROTECTIVE ORDER, signed by Magistrate Judge Michael J. Seng on 6/1/2017. (Lafata, M)

1

CHARLES D. MAY, ESQ.; STATE BAR NO.: 129663
DIANA M. RIVERA, ESQ.; STATE BAR NO.: 222025

2
3
4
5
6

THARPE & HOWELL, LLP
15250 Ventura Blvd., Ninth Floor
Sherman Oaks, California 91403
[phone]; [phone] fax
E-Mail: [e-mail]
E-Mail: [e-mail]
Attorneys for Defendants,
LOWE’S HOME CENTERS, LLC

7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION

THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

10

BRANDI DAVIES,

Case No.: 1:16-cv-01219-AWI-MJS

11

Plaintiff(s),

PROTECTIVE ORDER

12

v.
13
14

LOWE’S HOME IMPROVEMENT,
LLC; and DOES 1 through 20,
Inclusive,

15

Defendant(s).
16
17
18
19

Plaintiff BRANDI DAVIES (“Plaintiff”) and Defendant LOWE’S HOME

20

CENTERS, LLC (“Defendant”) jointly submit this Proposed Order pursuant to

21

Federal Rules of Civil Procedure, Rule 26(c)(1) limiting the use and disposition of

22

certain information and documents during litigation of this matter.

23

Good Cause Statement

24

Federal Rules of Civil Procedure, Rule 26(c)(1) states in pertinent part, that

25

the Court, upon a showing of good cause may “issue an order to protect a party from

26

annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P.

27

26(c)(1). In the instant matter, Defendant’s Confidential Documents (as later defined

28

herein) contain proprietary and confidential trade secret information relating to

30

-1PROTECTIVE ORDER

31

1:16-cv-01219-AWI-MJS

1

Defendant’s business practices and its safety protocol. Defendant derives

2

independent economic value from maintaining the confidentiality of the policies and

3

procedures set forth in these Confidential Documents.

4

Defendant is a retailer in the home improvement industry and has conducted
business in California since 1998.

6

competitive. As a result of years of investing time and money in research and

7

investigation, defendant developed the policies contained in the Confidential

8

Documents for the purposes of maintaining the security and accessibility of its

9

merchandise, providing quality customer service, and ensuring the safety of its

10
THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

5

employees and customers. These policies and procedures, as memorialized in the

11

Confidential Documents, were created and generated by Lowe’s for Lowe’s, and are

12

used for the purposes of maintaining safety at its stores and creating efficient and

13

organized work environments for its employees. As a result, Defendant is able to

14

minimize the waste of any resources, which is a key factor in generating profitability

15

for its business.

The home improvement retail industry is very

16

Defendant derives economic value from maintaining the secrecy of its

17

Confidential Documents. If disclosed to the public, the trade secret information

18

contained in Defendant’s Confidential Documents would reveal Defendant’s internal

19

operations and could potentially be used by competitors as a means to compete for

20

its customers, interfere with its business plans and thereby gain unfair business

21

advantages. If Defendant’s safety protocol were revealed to the general public, it

22

would hinder Defendant’s ability to effectively resolve and minimize liability claims,

23

and its goal of protecting its customers and employees from theft and other crimes.

24

Unrestricted or unprotected disclosure of such information would result in prejudice

25

or harm to Defendant by revealing Lowe’s competitive confidential information,

26

which has been developed at the expense of Lowe’s and which represents valuable

27

tangible and intangible assets. An order of the Court is needed in this case to enable

28

the Court to enforce the stipulated agreement between the parties in the event of

30

-2PROTECTIVE ORDER

31

1:16-cv-01219-AWI-MJS

1

violation of such agreement by either party. Accordingly, the parties respectfully

2

submit that there is good cause for the entry of a Protective Order in this case.

3

The parties having agreed to the following terms governing the treatment of

4

confidential information, and the Court having found that good cause exists for

5

issuance of an appropriately-tailored confidentiality order governing the pre-trial

6

phase of this action, it is HEREBY ORDERED as follows:

7

1.

All documents produced or information disclosed and any other

documents or records designated as “CONFIDENTIAL” by the Defendant shall be

9

revealed only to a settlement officer, Plaintiff, counsel of record in this case,

10
THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

8

paralegals and secretarial employees under counsel’s direct supervision, and such

11

persons as are employed by counsel to act as experts in this action. The information

12

designated as “CONFIDENTIAL” and disclosed only in accord with the terms of

13

this paragraph may include, without limitation, documents and information

14

containing Defendant’s policies and procedures, as well as personnel records,

15

including disciplinary records, identity, information relating to the processes,

16

operations, type of work, or apparatus, or the production, sales, shipments, transfers,

17

identification of customers, inventories, amount or source of income, profits, losses,

18

expenditures, or any research, development, or any other commercial information

19

supplied by the Defendant in response to Plaintiff’s Interrogatories or Requests for

20

Production

21

documentation considered “CONFIDENTIAL” are subject to protection under Civil

22

Local Rule 141.1 of the U.S. District Court – Eastern District of California, Rule 26

23

of the Federal Rules of Civil Procedure, and under other provisions of Federal law.

24

2.

(collectively,

the

“Confidential

Documents”).

Information

and

Counsel for Plaintiff shall use all documents and information produced

25

or disclosed by the Defendant solely for the purposes of preparation for and trial of

26

this action. Under no circumstances shall information or materials covered by this

27

Protective Order be disclosed to anyone other than Plaintiff’s counsel of record in

28

this action, paralegals, secretarial employees under counsel’s direct supervision, and

30

-3PROTECTIVE ORDER

31

1:16-cv-01219-AWI-MJS

1

such

2

persons employed to act as experts in this action.

3

proceedings in this action, all documents and information subject to this Order,

4

including any copies or extracts or summaries thereof, or documents containing

5

information taken therefrom, shall be returned to counsel for the Defendant, at

6

defense counsel’s written request.

7

3.

At the conclusion of the

Prior to disclosure of any documents designated as “confidential” to

8

paralegals or secretarial employees of counsel or Plaintiff, counsel for Plaintiff shall

9

require such employees to read this Protective Order and agree to be bound by its

THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

10
11

terms.
4.

If counsel for Plaintiff determines that for purposes of this action,

12

documents or information produced by the Defendant and designated as

13

“confidential” must be revealed to a person employed to act as an expert in this

14

action, then counsel may reveal the designated documents or information to such

15

person, after first complying with the following:

16

(a)

17
18

Counsel for the Plaintiff shall have the expert read this Order and shall
explain the contents thereof to such expert.

(b)

Counsel for the Plaintiff shall require such expert to sign a copy of this

19

protective order that states: “I have read and understood the terms of

20

this protective order. I further agree to be bound by its terms.” Nothing

21

in this paragraph shall be deemed to enlarge the right of Defendant to

22

conduct discovery of any of Plaintiff’s experts, except solely with

23

respect to the ability of such expert to protect confidential information

24

and documents from re-disclosure.

25

5.

In accordance with Local Rule 141.1, any papers that are the subject of

26

a protective order may be filed under seal if a sealing order is obtained in compliance

27

with Local Rule 141.

28
30
31

6.

The Court’s Order is subject to revocation and modification by Order of
-4PROTECTIVE ORDER
1:16-cv-01219-AWI-MJS

1

the Court upon written stipulation of the parties, or upon motion and reasonable

2

notice, including opportunity for hearing and presentation of evidence.

3

7.

Nothing contained in this Order is intended or should be construed as

4

authorizing a party in this action to disobey a lawful subpoena issued in another

5

action.

6
7

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

8
9

IT IS SO ORDERED.

THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

10
11
12

Dated:

June 1, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30
31

-5PROTECTIVE ORDER
1:16-cv-01219-AWI-MJS

1
2
3
4
I:\27000-000\27759\Discovery\Federal\Proposed Order.docx

5

PROOF OF SERVICE
6

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
7

1.

At the time of service I was at least 18 years of age and not a party to this legal action.

2.

My business address is 15250 Ventura Boulevard, Ninth Floor, Sherman Oaks, CA 91403.

3.

I served copies of the following documents (specify the exact title of each document
served):

8
9

THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

10

[PROPOSED] PROTECTIVE ORDER

11
12

4.

I served the documents listed above in item 3 on the following persons at the addresses
listed:

13

Sally Chenault, Esq.
CHENAULT LAW
67 Linoberg Street, Suite #B
Sonora, CA 95370
[phone]; [phone] – Fax
[e-mail]

15
16
17
18
19

Attorneys for Plaintiff,
BRANDI DAVIES

Steven L. Rodriguez, Esq.
RODRIGUEZ LAW, APC
26565 W. Agoura Road, Suite 200
Calabasas, CA 91302
[phone]
[e-mail]

14

Associated Counsel for Plaintiff,
BRANDI DAVIES

20
21

5.

a.

By personal service. I personally delivered the documents on the date shown
below to the persons at the addresses listed above in item 4. (1) For a party
represented by an attorney, delivery was made to the attorney or at the attorney's
office by leaving the documents in an envelope or package clearly labeled to
identify the attorney being served with a receptionist or an individual in charge
of the office. (2) For a party delivery was made to the party or by leaving the
documents at the party's residence between the hours of eight in the morning and
six in the evening with some person not less than 18 years of age.

22
23
24
25

b.

X

26

By United States mail. I enclosed the documents in a sealed envelope or
package addressed to the persons at the addresses in item 4 and (specify one):

27

(1)

deposited the sealed envelope with the United States Postal Service,
with the postage fully prepaid on the date shown below, or

28
30
31

-6PROTECTIVE ORDER
1:16-cv-01219-AWI-MJS

1

(2)

2
3
4
5

X

placed the envelope for collection and mailing on the date shown
below, following our ordinary business practices. I am readily
familiar with this business's practice for collecting and processing
correspondence for mailing. On the same day that correspondence is
placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with
postage fully prepaid.

I am a resident or employed in the county where the mailing occurred. The
envelope or package was placed in the mail at Sherman Oaks, California.

6

c.

By overnight delivery. I enclosed the documents on the date shown below in an
envelope or package provided by an overnight delivery carrier and addressed to
the person at the addresses in item 4. I placed the envelope or package for
collection and overnight delivery at an office or a regularly utilized drop box of the
overnight delivery carrier.

d.

By messenger service. I served the documents on the date shown below by
placing them in an envelope or package addressed to the person on the addresses
listed in item 4 and providing them to a professional messenger service for service.

e.

By fax transmission. Based on an agreement of the parties to accept service by
fax transmission, I faxed the documents on the date shown below to the fax
numbers of the persons listed in item 4. No error was reported by the fax machine
that I used. A copy of the fax transmission, which I printed out, is attached to my
file copy.

f.

By e-mail or electronic transmission. Based on an agreement of the parties to
accept service by e-mail or electronic transmission, I caused the documents to be
sent on the date shown below to the e-mail addresses of the persons listed in item 4.
I did not receive within a reasonable time after the transmission any electronic
message or other indication that the transmission was unsuccessful.

7
8
9

THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

10
11
12
13
14
15
16
17

6.

I served the documents by the means described in item 5 on (date): 5/26/17

18
19

I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.

20
21

5/26/17
DATE

Amy Eivazian
(TYPE OR PRINT NAME)

(SIGNATURE OF DECLARANT)

22
23
24
25
26

I:\27000-000\27759\Discovery\Federal\Proposed Order.docx

27
28
30
31

-7PROTECTIVE ORDER
1:16-cv-01219-AWI-MJS

1
2
3
4
5
6
7
8
9

THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30
31

-8PROTECTIVE ORDER
1:16-cv-01219-AWI-MJS