Fraser, et al v. Wal-Mart Stores, Inc.

Filing 7

STIPULATION and PROTECTIVE ORDER signed by Magistrate Judge Dale A. Drozd on 4/30/2013. (Zignago, K.)

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Scott H. Jacobs (SBN 81980)
[e-mail]
Brandon W. Corbridge (SBN 244934)
[e-mail]
REED SMITH LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071-1514
Telephone:
Facsimile:

213.457.8000
213.457.8080

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Attorneys for Defendant
WAL-MART STORES, INC.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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AMY FRASER, and PAULA HAUG, on behalf
of themselves and all others similarly situated,

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Case No.: 2:13-CV-00520-TLN-DAD
STIPULATION AND PROTECTIVE
ORDER

Plaintiffs,
vs.
WAL-MART STORES, INC., a Delaware
corporation, and DOES 1 through 50, inclusive,
Defendants.

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The Honorable Troy L. Nunley

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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 disclosure

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and from use for any purpose other than prosecuting this litigation would be warranted.

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Accordingly, Plaintiffs Amy Fraser and Paula Haug, on the one hand, and Defendant Wal-Mart

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Stores, Inc., on the other hand (collectively, the “Parties”), hereby stipulate to and petition the Court

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to enter the following Stipulated Protective Order. The Parties acknowledge that this Stipulated

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Protective Order does not confer blanket protections on all disclosures or responses to discovery and

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that the protection it affords extends only to the limited information or items that are entitled under

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the applicable legal principles to treatment as confidential. The Parties further acknowledge, as set
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forth in Section 10 below, that this Stipulated Protective Order creates no entitlement to file

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confidential information under seal; Civil Local Rule 141 sets forth the procedures that must be

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followed and reflects the standards that will be applied when a party seeks permission from the

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Court to file material under seal. In accordance with Local Rule 141.1(c), a general description of

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the types of information eligible for protection under this Stipulated Protective Order, a showing of

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particularized need for the protection, and a showing as to why the need for protection should be

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addressed by a court order are set forth in Section 2.8 below.

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2.

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2.1

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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

employees, consultants, retained experts, and outside counsel (and their support staff).
2.2

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

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

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transcripts, or tangible things) that are produced or generated in disclosures or responses to

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discovery in this matter.
2.3

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

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

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developed under F.R.Civ.P. 26(c).

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2.4

“Highly Confidential – Attorneys’ Eyes Only” Information or Items:

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extremely sensitive “Confidential Information or Items” whose disclosure to another Party or non-

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party would create a substantial risk of serious injury that could not be avoided by less restrictive

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means.

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2.5

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a Producing Party.

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2.6

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

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

Material in this action.

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2.7

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

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that it produces in disclosures or in responses to discovery as “Confidential” or “Highly Confidential

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— Attorneys’ Eyes Only.”

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2.8

Protected Material: any Disclosure or Discovery Material that is designated

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as “Confidential” or as “Highly Confidential – Attorneys’ Eyes Only.” In general, Protected

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Material includes, without limitation, confidential, proprietary and competitively sensitive internal

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operating procedures, data processing protocols, commercial agreements, customer information and

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financial information. The protection contemplated by this Stipulated Protective Order is necessary

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to ensure that such confidential, proprietary and competitively sensitive information is not publicly

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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disclosed by the Parties or those non-parties to whom the Parties determine it is reasonably

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necessary to disclose the information in order to prosecute or defend this litigation, as provided in

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Section 7 below. Due to the private, confidential and competitively sensitive nature of the

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information that will be produced in the case, and the reasonable necessity for such information to be

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shared with non-parties in the course of this litigation, a court order is necessary to compel

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compliance with the protections contemplated by this Stipulated Protective Order by way of court

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ordered sanctions or punishment in the nature of contempt.

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2.9

Outside Counsel: attorneys who are not employees of a Party but who are

retained to represent or advise a Party in this action.

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2.10

House Counsel: attorneys who are employees of a Party.

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2.11

Counsel (without qualifier): Outside Counsel and House Counsel (as well as

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their support staffs).

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2.12

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 an expert

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witness or as a consultant in this action and who is not a past or a current employee of a Party or of a

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

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of a Party or a competitor of a Party’s. This definition includes a professional jury or trial consultant

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retained in connection with this litigation.

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2.13

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Professional Vendors: persons or entities that provide litigation support

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

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

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subcontractors.

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3.

SCOPE

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The protections conferred by this Stipulated Protective Order cover not only Protected

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Material, but also any information copied or extracted therefrom, as well as all copies, excerpts,

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summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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Counsel to or in court or in other settings that might reveal Protected Material.

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4.

DURATION

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

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Stipulated Protective Order shall remain in effect until a Designating Party agrees otherwise in

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writing or a court order otherwise directs.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

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

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Party or non-party that designates information or items for protection under this Stipulated

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Protective Order must take care to limit any such designation to specific material that qualifies under

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the appropriate standards. A Designating Party must take care to designate for protection only those

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parts of material, documents, items, or oral or written communications that qualify – so that other

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portions of the material, documents, items, or communications for which protection is not warranted

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are not swept unjustifiably within the ambit of this Stipulated Protective Order. Mass,

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indiscriminate, or routinized designations are prohibited. If it comes to a Party’s or a non-party’s

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attention that information or items that it designated for protection do not qualify for protection at

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all, or do not qualify for the level of protection initially asserted, that Party or non-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 this

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

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stipulated or ordered, material that qualifies for protection under this Stipulated Protective Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Stipulated Protective Order requires:
(a)

for information in documentary form (apart from transcripts of

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depositions or other pretrial or trial proceedings), that the Producing Party affixes the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” at the top of

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,

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by making appropriate markings in the margins) and must specify, for each portion, the level of

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protection being asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY”).

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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 which

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material it would like copied and produced. During the inspection and before the designation, all of

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the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

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

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qualify for protection under this Stipulated Protective Order, then, before producing the specified

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documents, the Producing Party must affix the appropriate legend (“CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) at the top of each page that contains

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

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

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markings in the margins) and must specify, for each portion, the level of protection being asserted

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(either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

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(b)

for testimony given in deposition or in other pretrial or trial

proceedings, that the Party or non-party offering or sponsoring the testimony identify on the record,
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before the close of the deposition, hearing, or other proceeding, all protected testimony, and further

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specify any portions of the testimony that qualify as “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY.” When it is impractical to identify separately each portion of testimony that is

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

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protection, the Party or non-party that sponsors, offers, or gives the testimony may invoke on the

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record (before the deposition or proceeding is concluded) a right to have up to 20 days to identify the

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

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protection being asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY”). Only those portions of the testimony that are appropriately designated for

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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protection within the 20 days shall be covered by the provisions of this Stipulated Protective Order.

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Transcript pages containing Protected Material must be separately bound by

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the court reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as instructed by the Party or non-

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party offering or sponsoring the witness or presenting the testimony.
(c)

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for information produced in some form other than documentary, and

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for any other 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 “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only portions of the information

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or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected

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portions, specifying whether they qualify as “Confidential” or as “Highly Confidential – Attorneys’

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Eyes Only.”

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5.3

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

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to designate qualified information or items as “Confidential” or “Highly Confidential – Attorneys’

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Eyes Only” does not, standing alone, waive the Designating Party’s right to secure protection under

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this Stipulated Protective Order for such material. If material is appropriately designated as

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“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” after the material was initially

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produced, the Receiving Party, on timely notification of the designation, must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this Stipulated

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Protective Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary

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

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its right to challenge a confidentiality designation by electing not to mount a challenge promptly

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after the original designation is disclosed.
6.2

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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

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Party’s confidentiality designation must do so in good faith and must begin the process by conferring

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directly (in voice to voice dialogue; other forms of communication are not sufficient) with counsel

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for the Designating Party. In conferring, the challenging Party must explain the basis for its belief

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

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opportunity to review the designated material, to reconsider the circumstances, and, if no change in

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designation is offered, to explain the basis for the chosen designation. A challenging Party may

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

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process first.

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6.3

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

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confidentiality designation after considering the justification offered by the Designating Party may

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file and serve a motion under Civil Local Rule 230 or 251 as appropriate (and in compliance with

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Civil Local Rule 141, if applicable) that identifies the challenged material and sets forth in detail the

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basis for the challenge. Each such motion must be accompanied by a competent declaration that

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affirms that the movant has complied with the meet and confer requirements imposed in the

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preceding paragraph and that sets forth with specificity the justification for the confidentiality

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designation that was given by the Designating Party in the meet and confer dialogue.

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The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Until the Court rules on the challenge, all parties shall continue to afford the
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material in question the level of protection to which it is entitled under the Producing Party’s

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designation.

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7.

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 case only for

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prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Stipulated

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Protective Order. When the litigation has been terminated, a Receiving Party must comply with the

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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provisions of section 11, below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location

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and in a secure manner that ensures that access is limited to the persons authorized under this

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Stipulated Protective Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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disclose any information or item designated CONFIDENTIAL only to:
(a)

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

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as employees of said Counsel to whom it is reasonably necessary to disclose the information for this

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litigation and who have signed the “Agreement to Be Bound by Protective Order” that is attached

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hereto as Exhibit A;

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(b)

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

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

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signed the “Agreement to Be Bound by Protective Order” (Exhibit A);

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(c)

Experts (as defined in this Stipulated Protective Order) of the

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

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the “Agreement to Be Bound by Protective Order” (Exhibit A);

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(d)

the Court and its personnel;

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(e)

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court reporters, their staffs, and professional vendors to whom

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disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be

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Bound by Protective Order” (Exhibit A);
(f)

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

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reasonably necessary and who have signed the “Agreement to Be Bound by Protective Order”

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(Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal

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Protected Material must be separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Stipulated Protective Order.
(g)

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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7.3

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

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a)

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

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as employees of said Counsel to whom it is reasonably necessary to disclose the information for this

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litigation and who have signed the “Agreement to Be Bound by Protective Order” that is attached

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hereto as Exhibit A;

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(b)

Experts (as defined in this Stipulated Protective Order) (1) to whom

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disclosure is reasonably necessary for this litigation, (2) who have signed the “Agreement to Be

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Bound by Protective Order” (Exhibit A);

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(c)

the Court and its personnel;

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(d)

court reporters, their staffs, and professional vendors to whom

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disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be

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Bound by Protective Order” (Exhibit A); and

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(e)

the author of the document or the original source of 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 Receiving Party is served with a subpoena or an order issued in other litigation

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the

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

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

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must include a copy of the subpoena or court order.
The Receiving Party also must immediately inform in writing the Party who caused

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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

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subpoena or order is the subject of this Stipulated Protective Order. In addition, the Receiving Party

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must deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that

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caused the subpoena or order to issue.

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The purpose of imposing these duties is to alert the interested parties to the existence

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of this Stipulated Protective Order and to afford the Designating Party in this case an opportunity to

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try to protect its confidentiality interests in the court from which the subpoena or order issued. The

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

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

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

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9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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Protective Order, and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.
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10.

FILING PROTECTED MATERIAL.

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Without written permission from the Designating Party or a court order secured after

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appropriate notice to all interested persons, a Party may not file in the public record in this action

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

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with Civil Local Rule 141. If, however, a Designating Party files Protected Material in the public

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record, any other Party may do so as well without written permission or order from the Court.

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11.

FINAL DISPOSITION.

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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

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

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

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Material. With permission in writing from the Designating Party, the Receiving Party may destroy

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some or all of the Protected Material instead of returning it. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification to the Producing Party

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(and, if not the same person or entity, to the Designating Party) by the sixty day deadline that

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identifies (by category, where appropriate) all the Protected Material that was returned or destroyed

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

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summaries or other forms of reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings,

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motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such

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

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

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above.

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12.

MISCELLANEOUS
12.1

Right to Further Relief. Nothing in this Stipulated Protective 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 Stipulated

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

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producing 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 material

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covered by this Stipulated Protective Order.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD:

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Dated: April 24, 2012

REED SMITH LLP

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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/s/ Scott H. Jacobs
Scott H. Jacobs
Brandon W. Corbridge

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Attorneys for Defendant
WAL-MART STORES, INC.

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Dated: April 24, 2012

LINDSAY LAW CORPORATION

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/s/James M. Lindsay (as authorized on April 24, 2012)
James M. Lindsay

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Attorneys for Plaintiffs and the Class

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PURSUANT TO STIPULATION, IT IS SO ORDERED:
Dated: April 30, 2013

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Dad1.civil
Fraser0520.stip-protectord.doc

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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

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Eastern District of California on _____________, 2013 in the case of Fraser v. Wal-Mart Stores,

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Inc., Case No.: 2:13-CV-00520-TLN-DAD. I agree to comply with and to be bound by all the terms

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

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REED SMITH LLP

[print or type full address], declare under penalty of perjury that I have read in its entirety and

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A limited liability partnership formed in the State of Delaware

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expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to this Stipulated Protective Order to

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

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

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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even

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if such enforcement proceedings occur after termination of 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 telephone number] as

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my California agent for service of process in connection with this action or any proceedings related

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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: ______________________________
[printed name]

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Signature: __________________________________
[signature]

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