Warren v. Sam's West, Inc. et al

Filing 17

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Edmund F. Brennan on 6/4/2013. (Donati, J)

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Timothy J. Murphy, SBN (54200)
Alice S. Wang, SBN (228351)
Daniel J. Aguilar, SBN (256557)
FISHER & PHILLIPS LLP
One Embarcadero Center, Suite 2050
San Francisco, California 94111-3712
Telephone: [phone]
Facsimile:
[phone]
Attorneys for Sam’s West, Inc. and Wal-Mart Stores, Inc.
UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LINDA WARREN,
Plaintiff,

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v.

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Case No.: 2:12-cv-02315-MCE-EFB
STIPULATED PROTECTIVE ORDER AND
ORDER GRANTING
PROTECTIVE ORDER

SAM’S WEST, INC. A Arkansas
Complaint Filed:
Corporation; WAL-MART STORES, INC. A Trial Date:
Delaware Corporation

September 10, 2012
June 30, 2014

Defendants.

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Defendants Sam’s West, Inc. and Wal-Mart Stores, Inc. (collectively “Defendants”) and

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Plaintiff Linda Warren (“Plaintiff”) (collectively “the Parties”), by and through their respective

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counsel of record, hereby enter into and stipulate to a Protective Order in the above referenced

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matter as follows:

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1.

PURPOSES AND LIMITATIONS

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

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be

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warranted. Accordingly, the Parties hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order. The Parties acknowledge that this Order does not confer

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blanket protections on all disclosures or responses to discovery and that the protection it affords

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from public disclosure and use extends only to the limited information or items that are entitled

STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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to confidential treatment under the applicable legal principles.

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acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not

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entitle them to file confidential information under seal and proper procedures and protocol

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under Local Rules, Court Rules and Civil Procedure must be followed if and when a party

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seeks permission from the Court to file materials under seal.

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2.

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The Parties further

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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2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal

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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).
2.4 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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2.5 Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other

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things, testimony, transcripts, and tangible things), that are produced or generated in disclosures

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or responses to discovery in this matter.

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2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to

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the litigation who has been retained by a Party or its counsel to serve as an expert witness or as

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a consultant in this action.

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2.7 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.
2.8 Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.

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2.9 Outside Counsel of Record: attorneys who are not employees of a party to this

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

STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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action on behalf of that party or are affiliated with a law firm which has appeared on behalf of

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

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consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery

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Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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

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subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is designated as

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“CONFIDENTIAL.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

SCOPE

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

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

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any

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testimony, conversations, or presentations by the Parties or their Counsel that might reveal

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Protected Material.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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

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pursuant to applicable law.

STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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(a)

The protection of this protective order may be invoked with

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respect to any documents, testimony, information, and things

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(collectively "materials") produced or created in this action that contain

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confidential information.

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information" includes testimony and records, including but not limited to

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discovery responses, whether hardcopy or electronic, that contain

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confidential and/or proprietary trade secret information, including, but

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not limited to, technical and competitively-sensitive information

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protected by law, and information protected by California's constitution

As used herein, the term "confidential

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and common law right to privacy.

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containing

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"Confidential." Such designation may be made by either Party or any

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non-party producing materials in this action ("Producing Party"), or may

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be made by a Party who determines, in good faith, that materials

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produced by a non-party contain confidential information ("Designating

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Party") even though not so designated by the Producing Party.
(b)

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Confidential

As set forth below, materials

Information

may

be

designated

as

In the event that additional parties join or are joined in this litigation,

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they shall not have access to materials designated as "Confidential"

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pursuant to this Protective Order until they have executed and, at the

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request of any Party, filed with the Court their agreement to be bound by

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this Protective Order.

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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

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

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The Designating Party must 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

STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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unjustifiably within the ambit of this Order. Mass, indiscriminate, or routine designations are

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prohibited. Designations that are shown to be clearly unjustified or that have been made for an

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

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

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sanctions. 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 promptly

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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 this Order

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

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly

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so designated before the material is disclosed or produced.

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this Order requires:

Designation in conformity with

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(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If

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

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

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margins). A Party or Non-Party that makes original documents or materials available for

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

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which material it would like copied and produced. During the inspection and before the

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

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“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,

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qualify for protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected

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Material. 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 appropriate

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markings in the margins).

STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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

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Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony.

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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

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container or containers in which the information or item is stored the legend

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“CONFIDENTIAL.”

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protection, the Producing Party, to the extent practicable, shall identify the protected portion(s).

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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 does not, standing alone, waive the Designating

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Party’s right to secure protection under this Order for such material. Upon timely correction of

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a designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

If only a portion or portions of the information or item warrant

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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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. The Challenging Party shall initiate the dispute resolution process

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by providing written notice of each designation it is challenging and describing the basis for

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each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Protective Order. The Parties shall attempt to resolve each challenge

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

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

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

STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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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

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offered, to explain the basis for the chosen designation. A Challenging Party may proceed to

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the next stage of the challenge process only if it has engaged in this meet and confer process

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first or establishes that the Designating Party is unwilling to participate in the meet and confer

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process in a timely manner.
6.3 Judicial Intervention.

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If the Parties cannot resolve a challenge without court

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

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the Civil Local Rules within 21 days of the initial notice of challenge or within 14 days of the

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Parties agreeing that the meet and confer process will not resolve their dispute, whichever is

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earlier. Each such motion must be accompanied by a competent declaration affirming that the

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movant has complied with the meet and confer requirements imposed in the preceding

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paragraph. Failure by the Designating Party to make such a motion including the required

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

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confidentiality 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 good cause

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for doing so, including a challenge to the designation of a deposition transcript or any portions

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thereof. Any motion brought pursuant to this provision must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer requirements

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imposed by the preceding paragraph. The burden of persuasion in any such challenge

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proceeding shall be on the Designating Party. Frivolous challenges, and those made for an

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

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

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confidentiality designation by failing to file a motion to retain confidentiality as described

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above, all parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Producing Party’s designation until the court rules on the

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challenge.

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STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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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

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to the categories of persons and under the conditions described in this Order. When the

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litigation has been terminated, a Receiving Party must comply with the provisions of section 13

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below (FINAL DISPOSITION). Protected Material must be stored and maintained by a

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Receiving Party at a location and in a secure manner that ensures that access is limited to the

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persons authorized under this Order.

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

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

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any 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

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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

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Exhibit 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

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and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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

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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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STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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

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Be Bound” (Exhibit A);

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(f) witnesses: this paragraph shall govern the disclosure of any materials

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designated as Confidential to witnesses or potential witnesses either at

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deposition, trial or through the Parties’ own internal discovery efforts. If a

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witness, potential witness, or any other person is being verbally questioned

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about a document marked “CONFIDENTIAL” without looking at the document,

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then there is no need to execute Exhibit A; (2) if a witness, potential witness, or

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any other person is directly viewing a document marked “CONFIDENTIAL”

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when verbally questioned formally at deposition, court hearing, or otherwise,

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and/or when verbally questioned informally in the presence of one of the

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Parties’ counsel or all of the Parties’ counsel, then s/he must execute Exhibit A;

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and (3) if a witness, potential witness, or any other person at deposition, court

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hearing, or otherwise refuses to sign Exhibit A, then the deposition, hearing, or

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otherwise will continue and the witness may directly view documents marked

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‘”CONFIDENTIAL” without signing Exhibit A and the Parties by way of their

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Counsel of Record will then stipulate to mark the record (e.g. deposition

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transcript, hearing transcript, etc.) “CONFIDENTIAL,” but such witness will

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not be permitted to retain a copy of the document after the deposition or hearing.

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(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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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that

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compels

disclosure

of

any

information

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“CONFIDENTIAL,” that Party must:

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or

items

designated

in

this

action

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STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

as

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(a) promptly notify in writing the Designating Party. Such notification shall include a

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copy of the subpoena or court order; (b) promptly notify in writing the party who caused the

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

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subpoena 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

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sought to be pursued by the Designating Party whose Protected Material may be affected. If

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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”

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

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has obtained the Designating Party’s permission. The Designating Party shall bear the burden

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and expense of seeking protection in that court of its confidential material – and nothing in

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

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action to disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN

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THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a Non-Party in

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this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties

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in connection with this litigation is protected by the remedies and relief provided by this Order.

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Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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

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Party’s confidential information in its possession, and the Party is subject to an agreement with

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the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: (1)

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promptly notify in writing the Requesting Party and the Non-Party that some or all of the

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information requested is subject to a confidentiality agreement with a Non-Party; (2) promptly

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provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the

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relevant discovery request(s), and a reasonably specific description of the information

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requested; and (3) make the information requested available for inspection by the Non-Party.

STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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(c) If the Non-Party fails to object or seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce

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the Non-Party’s confidential information responsive to the discovery request. If the Non-Party

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timely seeks a protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the Non-Party before

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a determination by the court.

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the burden and expense of seeking protection in this court of its Protected Material.

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10.

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Absent a court order to the contrary, the Non-Party shall bear

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

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

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms 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 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 inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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

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

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protection, the Parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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The purpose of this provision is to alert the interested parties to the existence of confidentially rights of a Non-Party and to
afford the Non-Party an opportunity to protect is confidentially interests in this court.

STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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12.

12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to

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MISCELLANEOUS

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

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Order no Party waives any right it otherwise would have to object to disclosing or producing

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any information or item on any ground not addressed in this Stipulated Protective Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.

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12.3 Filing Protected Material. Without written permission from the Designating Party

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

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the public record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Local Rules, Courtroom Rules, and Code of Civil

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Procedure. Protected Material may only be filed under seal pursuant to a court order

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authorizing the sealing of the specific Protected Material at issue.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in paragraph 4, each

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Receiving Party must return all Protected Material to the Producing Party or destroy such

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

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

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a 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, where

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

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

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format 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, trial, deposition,

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and hearing 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 such materials

STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

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

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Material remain subject to this Protective Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: June 3, 2013

THE VELEZ LAW FIRM

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By: /s/ Mark Velez
Mark Peter Velez
Karen Asplund Velez
Attorneys for Plaintiff
Linda Warren

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DATED: June 3, 2012

FISHER & PHILLIPS LLP

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By: /s/Alice S. Wang
Timothy J. Murphy
Alice S. Wang
Daniel J. Aguilar
Attorneys for Defendants
Sam’s West, Inc. and
Wal-Mart Stores, Inc.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: June 4, 2013

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STIPULATED PROTECTIVE ORDER AND ORDER GRANTING PROTECTIVE ORDER

EXHIBIT A

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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 I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States District Court

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for the Eastern District of California in the case of Linda Warren v. Sam’s West, Inc. and Wal-

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Mart Stores, Inc., Case No.: 2:12-cv-02315-MCE-EFB, I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and acknowledge

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that failure to so comply could expose me to sanctions and punishment in the nature of

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

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that 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. I further agree to submit to the jurisdiction of the

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United States District Court for the Eastern District of California for the purpose of enforcing

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the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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I hereby appoint __________________________ [print or type full name]

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of_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective 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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____________________________________________________________________________________________
EXHIBIT A