Frazer v. Lowe's Homes Centers, LLC

Filing 19

Order entering stipulated Protective Order re confidential documents, signed by Magistrate Judge Stanley A. Boone on 1/17/2023. (Rosales, O.)

Case 1:22-cv-00410-JLT-SAB Document 19 Filed 01/17/23 Page 1 of 16
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER ENTERING STIPULATED
PROTECTIVE ORDER RE CONFIDENTIAL
DOCUMENTS

Plaintiff,

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Case No. 1:22-cv-00410-JLT-SAB

MARLEA FRAZER,

v.

(ECF No. 18)

LOWE’S HOMES CENTERS, LLC,

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Defendant.

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STIPULATED PROTECTIVE ORDER

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A. PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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

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The parties acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from public
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disclosure and use extends only to the limited information or items that are entitled

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to confidential treatment under the applicable legal principles.

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B. GOOD CAUSE STATEMENT

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

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

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from annoyance, embarrassment, oppression, or undue burden or expense.”

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Fed.R.Civ.P. 26(c)(1). In the instant matter, Defendant Lowe’s Home Centers,

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LLC’s Confidential Documents contain proprietary and confidential trade secret

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information relating to Defendant Lowe’s Home Centers, LLC’s business practices

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and its safety protocol. Defendant Lowe’s Home Centers, LLC. (“Defendant” or

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“Lowe’s”)

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confidentiality of the policies and procedures set forth in these Confidential

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Documents.

derives

independent

economic

value

from

maintaining

the

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Defendant is a retailer in the home improvement industry and has conducted

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business in California since 1998. The home improvement retail industry is very

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

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investigation, Defendant developed the policies contained in the Confidential

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

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

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

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

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

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

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

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profitability for its business.

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Defendant derives economic value from maintaining the secrecy of its

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

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contained in Defendant’s Confidential Documents would reveal Defendant’s
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Case 1:22-cv-00410-JLT-SAB Document 19 Filed 01/17/23 Page 3 of 16
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internal operations and could potentially be used by competitors as a means to

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

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business advantages. If Defendant’s safety protocol were revealed to the general

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public, it would hinder Defendant’s ability to effectively resolve and minimize

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liability claims, and its goal of protecting its customers and employees from theft

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and other crimes. Unrestricted or unprotected disclosure of such information would

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result in prejudice or harm to Defendant by revealing Lowe’s competitive

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confidential information, which has been developed at the expense of Lowe’s and

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which represents valuable tangible and intangible assets. Accordingly, the parties

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respectfully submit that there is good cause for the entry of this Protective Order.

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2.

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DEFINITIONS
2.1

Challenging Party:

a Party or Non-Party that challenges the

designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
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Designating Party: a Party or Non-Party that designates information

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or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.5

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.

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2.6

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this action.
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2.7

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House Counsel: attorneys who are employees of a party to this action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.
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Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a

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party to this action but are retained to represent or advise a party to this action and

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have appeared in this action on behalf of that party or are affiliated with a law firm

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which has appeared on behalf of that party.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this action.
2.12 Professional Vendors:

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persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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2.13 Protected Material:

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any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”
2.14 Receiving Party:

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Material from a Producing Party.

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3.

a Party that receives Disclosure or Discovery

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.
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However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time

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of disclosure to a Receiving Party or becomes part of the public domain after its

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disclosure to a Receiving Party as a result of publication not involving a violation

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of this Order, including becoming part of the public record through trial or

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otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source

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who obtained the information lawfully and under no obligation of confidentiality to

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the Designating Party. Any use of Protected Material at trial shall be governed by a

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separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents,

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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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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or

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to impose unnecessary expenses and burdens on other parties) expose the

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Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:

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(a)

for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each

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

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

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

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A Party or Non-Party that makes original documents or materials available

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for inspection need not designate them for protection until after the inspecting Party

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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

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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

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If only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings,

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that the Designating Party identify on the record, before the close of the deposition,

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hearing, or other proceeding, all protected testimony.

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(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL.” If only a portion or portions of the information or item

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warrant protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges.

Any Party or Non-Party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a

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Designating Party’s confidentiality designation is necessary to avoid foreseeable,

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substantial unfairness, unnecessary economic burdens, or a significant disruption or

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delay of the litigation, a Party does not waive its right to challenge a confidentiality

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designation by electing not to mount a challenge promptly after the original

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designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute
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resolution process by providing written notice of each designation it is challenging

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and describing the basis for each challenge. To avoid ambiguity as to whether a

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challenge has been made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The parties shall attempt to resolve each challenge in good faith

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and must begin the process by conferring directly (in voice to voice dialogue; other

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forms of communication are not sufficient) within 14 days of the date of service of

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notice. In conferring, the Challenging Party must explain the basis for its belief that

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the confidentiality designation was not proper and must give the Designating Party

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an opportunity to review the designated material, to reconsider the circumstances,

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and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge

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process only if it has engaged in this meet and confer process first or establishes

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that the Designating Party is unwilling to participate in the meet and confer process

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in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Designating Party shall file and serve a motion to retain

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confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule

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79-5, if applicable) within 21 days of the initial notice of challenge or within 14

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days of the parties agreeing that the meet and confer process will not resolve their

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dispute, whichever is earlier. Each such motion must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and

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confer requirements imposed in the preceding paragraph. Failure by the

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Designating Party to make such a motion including the required declaration within

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21 days (or 14 days, if applicable) shall automatically waive the confidentiality

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designation for each challenged designation. In addition, the Challenging Party

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may file a motion challenging a confidentiality designation at any time if there is

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good cause for doing so, including a challenge to the designation of a deposition
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transcript or any portions thereof. Any motion brought pursuant to this provision

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must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed by the preceding

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paragraph.

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

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Designating Party. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has

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waived the confidentiality designation by failing to file a motion to retain

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confidentiality as described above, all parties shall continue to afford the material

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in question the level of protection to which it is entitled under the Producing

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Party’s designation until the court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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disclosed or produced by another Party or by a Non-Party in connection with this

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case only for prosecuting, defending, or attempting to settle this litigation. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving

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“CONFIDENTIAL” only to:

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Party

may

disclose

any

information

or

item

designated

(a) the Receiving Party’s Outside Counsel of Record in this action, as well
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as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A;

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(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock

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jurors, and Professional Vendors to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

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ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information.

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(h) any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions.

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8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall

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include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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

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or order is subject to this Protective Order. Such notification shall include a copy of

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this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued

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by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served

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with the subpoena or court order shall not produce any information designated in

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this action as “CONFIDENTIAL” before a determination by the court from which

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the subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action

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to disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a

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Non-Party in this action and designated as “CONFIDENTIAL.” Such information

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produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be

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construed as prohibiting a Non-Party from seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is
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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the

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Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its Protected

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Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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notify in writing the Designating Party of the unauthorized disclosures, (b) use its

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best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform

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the person or persons to whom unauthorized disclosures were made of all the terms

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of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
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A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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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

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any of the material covered by this Protective Order.

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12.3 Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record in this action any Protected

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Material. A Party that seeks to file under seal any Protected Material must comply

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with Civil Local Rule 141. Protected Material may only be filed under seal

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pursuant to a court order authorizing the sealing of the specific Protected Material

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at issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a
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request establishing that the Protected Material at issue is privileged, protectable as

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a trade secret, or otherwise entitled to protection under the law. If a Receiving

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Party's request to file Protected Material under seal pursuant to Civil Local Rule

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79-5(d) is denied by the court, then the Receiving Party may file the information in

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the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed

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by the court.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in

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paragraph 4, each Receiving Party must return all Protected Material to the

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Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and

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any other format reproducing or capturing any of the Protected Material. Whether

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the Protected Material is returned or destroyed, the Receiving Party must submit a

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written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that (1) identifies (by category,

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where appropriate) all the Protected Material that was returned or destroyed and (2)

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affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

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archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if

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such materials contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION).

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EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury that

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I have read in its entirety and understand the Stipulated Protective Order that was

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issued by the United States District Court for the Eastern District of California on

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[date] in the case of Marlea Frazer v. Lowe’s Home Centers, LLC, et al., Case No.:

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1:22-CV-00410-JLT-SAB. I agree to comply with and to be bound by all the terms of

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this Stipulated Protective Order and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item that

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is subject to this Stipulated Protective Order to any person or entity except in strict

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compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Eastern District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of

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this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Stipulated Protective

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Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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///

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///
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Case 1:22-cv-00410-JLT-SAB Document 19 Filed 01/17/23 Page 16 of 16
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COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER

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Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY

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ORDERED that:

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1.

The above stipulated protective order is ENTERED;

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2.

The provisions of the parties’ stipulation and this protective order shall remain in

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effect until further order of the Court;

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3.

The parties are advised that pursuant to the Local Rules of the United States

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District Court, Eastern District of California, any documents which are to be filed

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under seal will require a written request which complies with Local Rule 141;

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4.

The party making a request to file documents under seal shall be required to show

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either good cause or compelling reasons to seal the documents, depending on the

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type of filing, Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir.

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2009); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir.

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2016); and

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5.

If a party’s request to file Protected Material under seal is denied by the Court,

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then the previously filed material shall be immediately accepted by the court and

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become information in the public record and the information will be deemed filed

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as of the date that the request to file the Protected Information under seal was

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made.

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IT IS SO ORDERED.
Dated:

January 17, 2023
UNITED STATES MAGISTRATE JUDGE

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