Stiles v. Wal-Mart Stores Inc, et al

Filing 178

PROTECTIVE ORDER signed by Magistrate Judge Dennis M. Cota on 12/3/2018. (Huang, H)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SHARIDAN STILES, an individual, STILES
4 U, INC., a California corporation,

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Case No. 2:14-cv-02234-MCE-CMK
PROTECTIVE ORDER

Plaintiffs,

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Judge: The Honorable Morrison C.
England, Jr.

v.

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WALMART INC., f/k/a WAL-MART
STORES, INC.; AMERICAN
INTERNATIONAL INDUSTRIES,

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Magistrate Judge: Dennis M. Cota

Defendants.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and Local Rule 141.1, the
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Court, for good cause shown, hereby enters the following Protective Order in the above-captioned
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matter, which is applicable to plaintiffs Sharidan Stiles and STILES 4 U, Inc. (collectively,
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“Plaintiffs”); defendants Walmart Inc.1 (“Walmart”) and American International Industries (“AI”)
(collectively, “Defendants”) (“Plaintiffs” and “Defendants” together, the “Parties”) and to third

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parties:
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1.

This action is likely to involve confidential commercial, financial, and proprietary

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information; private information of third parties; and trade secrets, for which special protection
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from public disclosure and from use for any purpose other than prosecution of this action is
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warranted. Such confidential and proprietary materials and information consist of, among other
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Effective February 1, 2018, Wal-Mart Stores, Inc. changed its name to “Walmart Inc.”
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AMERICAS 95194616

[PROPOSED] PROTECTIVE ORDER
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things, business and financial information with respect to the accused products and other

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products, such as information on cost, pricing, sales, revenue, and profits; information regarding

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defendants’ business practices and commercial operations; other commercial information

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(including information implicating privacy rights of third parties, e.g., Walmart’s customers);

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information otherwise generally not available to the public, or which may be privileged or

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otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or

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common law. Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately protect

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information the parties are entitled to keep confidential, to ensure that the parties are permitted

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reasonable necessary uses of such material in preparation for and in the conduct of trial, to

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address their handling at the end of the litigation, and serve the ends of justice, a protective order

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for such information is justified in this matter. Information will not be designated as confidential

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for tactical reasons and nothing will be designated without a good-faith belief that it has been

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maintained in a confidential, non-public manner, and there is good cause why it should not be

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part of the public record of this case.

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2.

A Court order is also necessary, as opposed to a private agreement, because

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Plaintiffs and Walmart have met and conferred since August, 2018 to negotiate a stipulated

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protective order. Plaintiffs refused to agree to Walmart’s proposed protective order because it

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contained an optional “attorneys’ eyes only” (“AEO”) provision. Plaintiffs now dispute the need

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for a protective order in this case altogether.

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3.

This Protective Order shall govern the disclosure of materials designated as

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Confidential Material during the course of discovery. Confidential Material, as used in this

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Order, shall refer to any document or item designated as Confidential, including but not limited

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to, documents or items produced during discovery, all copies thereof, and the information

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contained in such material.

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4.

Confidential Material, as used in this Order, consists of the following materials

and categories of materials:
a.

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Materials relating to any privileged, confidential, or nonpublic information,
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AMERICAS 95194616

[PROPOSED] PROTECTIVE ORDER
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including, but not limited to, trade secrets, research, design, development,

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financial, technical, marketing, planning, personal, or commercial

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information, as such terms are used in the Federal Rules of Civil Procedure

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and any applicable case law interpreting Rule 26(c)(1)(G) or the former Rule

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26(c)(7), contracts; proprietary information; vendor agreements; personnel

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

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is a need to protect confidential business or commercial information because

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it could be abused if not limited to this litigation, including potential use by

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third party competitors.
b.

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Protected Data shall refer to any information that a party believes in good

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faith to be subject to federal, state or foreign data protection laws or other

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privacy obligations. Examples of such data protection laws include but are

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not limited to The Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq.

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(financial information); and, The Health Insurance Portability and

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Accountability Act and the regulations thereunder, 45 CFR Part 160 and

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Subparts A and E of Part 164 (medical information). Certain Protected Data

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may compel alternative or additional protections beyond those afforded

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Confidential Material, in which event the parties shall meet and confer in

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good faith, and, if unsuccessful, shall move the Court for appropriate relief.

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5.

If any party seeks to designate additional documents or categories of documents as

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Confidential Material, it will be the burden of the party seeking protected status to move for a

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Court Order designating the materials as confidential after the parties confer.

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6.

Such Confidential Material as described in paragraph 4 should be given the

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protection of an order of this Court to prevent injury through disclosure to persons other than

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those persons involved in the prosecution or defense of this litigation.

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7.

To designate information as confidential, the producing party shall mark

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Confidential Material with the legend “CONFIDENTIAL- SUBJECT TO PROTECTIVE

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ORDER” and shall submit confidential discovery, such as answers to interrogatories or answers
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to requests for admissions, in a separate document stamped with the appropriate legend. The

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Receiving Party may make copies of Confidential Material and such copies shall become subject

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to the same protections as the Confidential Material from which those copies were made.
a.

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Information on a disk or other electronic format may be designated

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confidential by marking the storage medium itself with the legend “CONFIDENTIAL- SUBJECT

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TO PROTECTIVE ORDER”. The Receiving Party shall mark any hard-copy printouts and the

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storage medium of any permissible copies of such electronic material with the corresponding

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legend contained on the original and such copies shall become subject to the same protections, as

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the Confidential Material from which those copies were made.
b.

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Information disclosed at any deposition of a party taken in this action may

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be designated by the party as confidential by indicating on the record at the deposition that the

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information is confidential and subject to the provisions of this Order. Alternatively, the party

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may designate information disclosed at the deposition as confidential by notifying the court

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reporter and other parties in writing, within 15 business days of receipt of the transcript, of the

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specific pages and lines of the transcript which are designated as confidential. The parties may

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agree to a reasonable extension of the 15 business day period for designation. Designations of

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transcripts will apply to audio, video, or other recordings of the testimony. During such 15

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business day period, the entire transcript shall receive confidential treatment. Upon such

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designation, the court reporter and each party shall affix the “CONFIDENTIAL- SUBJECT TO

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PROTECTIVE ORDER”legend to the designated pages and segregate them as appropriate.
c.

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Copies of material described in paragraph 4 above, or incorporated into

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paragraph 4 by Court Order, and which were produced without the designation of

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“CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER” may be so designated later if the

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Producing Party failed to make such designation at the time of production through inadvertence

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or error. If such information has been disclosed to persons not qualified pursuant to paragraph 9

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below, the party who disclosed such information shall take reasonable efforts to retrieve

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previously disclosed Confidential Material and advise such persons that the material is

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Confidential.
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[PROPOSED] PROTECTIVE ORDER
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8.

Pursuant to Federal Rule of Evidence 502(d), disclosure (including production) of

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information that a party or non-party later claims should not have been disclosed because of a

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privilege, including, but not limited to, the attorney-client privilege or work product doctrine

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(“Privileged Information”), shall not constitute a waiver of, or estoppel to, any claim of attorney-

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client privilege, attorney work product, or other ground for withholding production as to which

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the Producing Party would be entitled in the Litigation or any other federal or state proceeding.

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Pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) and Federal Rule of Evidence 502(e), the

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Receiving Party hereby agrees to return, sequester, or destroy any Privileged Information

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disclosed or produced by the Producing Party upon request. If the Receiving Party reasonably

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believes that Privileged Information has been inadvertently disclosed or produced to it, it shall

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promptly notify the Producing Party and sequester such information until instructions as to

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disposition are received. The failure of any party to provide notice or instructions under this

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Paragraph shall not constitute a waiver of, or estoppel to, any claim of attorney-client privilege,

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attorney work product, or other ground for withholding production as to which the Producing

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Party would be entitled in the Litigation or any other federal or state proceeding. This provision

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is designed to foreclose any arguments that by making such production, the production of

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Confidential Materials subject to a legally recognized claim of privilege, including without

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limitation the attorney-client privilege, work-product doctrine, or other applicable privilege:

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a.

was not inadvertent by the Producing Party;

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b.

that the Producing Party did not take reasonable steps to prevent the
disclosure of privileged Documents;

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c.

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such Disclosure; and/or

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d.

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that such Disclosure acts as a waiver of applicable privileges or protections
associated with such Documents.

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that the Producing Party did not take reasonable or timely steps to rectify

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Any Confidential Material and the information contained therein shall be

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disclosed only to the Court, its staff, and counsel of record, and also shall be disclosed on a need-

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to-know basis only to the parties, counsel’s staff personnel, employees of a party to whom
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[PROPOSED] PROTECTIVE ORDER
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disclosure is necessary in connection with the preparation for and trial of this action, and any

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witnesses in the case (including consulting and testifying experts) as may from time to time

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reasonably be necessary in prosecution or defense of this action. Confidential Material shall not

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be disclosed to any outside experts or consultants who are current or former employees or current

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or former consultants of a direct competitor of any party named in the Litigation. Counsel shall

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advise all persons to whom Confidential Material is disclosed pursuant to this Order of the

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existence of this Order, and shall provide all such persons (other than the Court and its staff) with

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a copy of this Order. Counsel also shall require all persons, except the Court, its staff, the parties,

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counsel of record and counsel’s staff personnel, to execute the Affidavit attached as Exhibit A,

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prior to the disclosure of Confidential Material. It shall be the obligation of counsel, upon

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learning of any breach or threatened breach of this Protective Order, to promptly notify counsel

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for the Producing Party of such breach or threatened breach. Counsel shall not otherwise offer or

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permit disclosure of any Confidential Material, its contents, or any portion or summary thereof.

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Disputes concerning the confidential nature of such materials shall be resolved by the Court upon

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motion prior to dissemination of any Confidential Material.

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10.

Persons having knowledge of Confidential Material and information by virtue of

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their participation in the conduct of this litigation shall use them for that purpose only and only as

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permitted herein, and shall not disclose such Confidential Material, their contents or any portion

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or summary thereof to any person(s) not involved in the conduct of this litigation. If any person

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having access to the Confidential Material herein shall violate this Order, he/she may be subject

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to sanctions by the Court.

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11.

The provisions of this Protective Order shall not affect, and this Order does not

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limit, the use or admissibility of Confidential Material (or references to that material) as evidence

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at trial, or during a hearing or similar proceeding in this action or as part of the record on appeal,

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provided that either party may seek an appropriate Court Order to protect Confidential Material.

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12.

Nothing in this Protective Order shall be deemed to preclude any party or

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interested member of the public from seeking and obtaining, on an appropriate showing, a

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modification of this Order including additional protection with respect to confidentiality of
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[PROPOSED] PROTECTIVE ORDER
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material or the removal of a confidential designation. Should counsel or an interested member of

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the public disagree with any designation of material as confidential, he or she first shall attempt to

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resolve such dispute with the parties’ counsel and, if unsuccessful, apply to the Court for a

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determination as to whether the material or information should remain designated as Confidential

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Material. Pending resolution of any challenges, the material at issue shall continue to be treated

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as Confidential Material until ordered otherwise by the Court.

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13.

The restrictions set forth in any of the preceding paragraphs shall not apply to

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information or material that was, is or becomes public knowledge in a manner other than by

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violation of this Order.

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14.

Confidential Material may be filed with the Court. Should any party have good

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cause to seal from public view any Confidential Material that is filed with the Court, that party

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must file a separate and specific request to seal in compliance with Local Rule 141. The request

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will only be granted for good cause shown and if consistent with federal case law regarding

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materials under seal. If a party files papers that include Confidential Material of another party,

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the filing party shall file a request to seal indicating that another party has designated the

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Confidential Material for protection and shall comply with all provisions of Local Rule 141(b)

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except the provisions requiring the filing party to set forth “the basis for sealing,” “the statutory or

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other authority for sealing, the requested duration, [and] the identity, by name or category, of

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persons to be permitted access to the documents.” The designating party shall respond to the

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request to seal within three (3) days, setting forth “the basis for sealing,” “the statutory or other

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authority for sealing, the requested duration, [and] the identity, by name or category, of persons to

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be permitted access to the documents.” Any member of the public may challenge any attempt by

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any party to the sealing of the documents filed with the Court.

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15.

In the event Confidential Materials or portions of transcripts are sealed as

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confidential by the Court as described in paragraph 12 above, they shall be filed in an envelope

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bearing the following designation when deposited:
CONFIDENTIAL

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IN ACCORDANCE WITH THE PROTECTIVE ORDER OF THE
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[PROPOSED] PROTECTIVE ORDER
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COURT, THE CONTENTS OF THIS ENVELOPE SHALL BE
TREATED AS CONFIDENTIAL AND MUST NOT BE SHOWN
TO A PERSON OTHER THAN THE COURT, THE PARTIES,
ATTORNEYS IN THIS CASE, OR TO PERSONS ASSISTING
THOSE ATTORNEYS.

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This Order shall continue to be binding throughout and after the conclusion of this

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litigation, including all appeals. Within 30 days of settlement or final adjudication, including but

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not limited to final adjudication of any appeals or petitions for extraordinary writs, all items

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designated as “Confidential,” and all copies or summaries thereof shall be returned to the party

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that produced such materials or shall be destroyed. Whether the Confidential Material is returned

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

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the 30-day deadline that (1) identifies (by category, where appropriate) all the Confidential

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Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained

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any copies, abstracts, compilations, summaries or any other format reproducing or capturing any

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of the Confidential Material. Notwithstanding this provision, counsel is entitled to retain any

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attorney work product.

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If any person receiving documents covered by this Order is served with a

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subpoena, order, interrogatory, or document or civil investigative demand (collectively, a

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“Demand”) issued in any other action, investigation, or proceeding, and such Demand seeks

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material that was produced or designated as Confidential Material by someone other than the

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Receiving Party, the Receiving Party shall give prompt written notice by hand or facsimile

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transmission within five (5) business days of receipt of such Demand to the party or non-party

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who produced or designated the material as Confidential Material, and shall object to the

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production of such materials on the grounds of the existence of this Order. The burden of

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opposing the enforcement of the Demand shall fall upon the party or non-party who produced or

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designated the material as Confidential Material. Unless the party or non-party who produced or

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designated the Confidential Material obtains an order directing that the Demand not be complied

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with, and serves such order upon the Receiving Party prior to production pursuant to the Demand,

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the Receiving Party shall be permitted to produce documents responsive to the Demand on the

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Demand response date, provided sufficient notice of the Demand is provided. Compliance by the
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[PROPOSED] PROTECTIVE ORDER
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Receiving Party with any order directing production pursuant to the Demand of any Confidential

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Material shall not constitute a violation of this Order. Nothing in this Order shall be construed as

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

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18.

In the event additional parties join or intervene in this litigation, the newly joined

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party(ies) shall not have access to Confidential Material until its/their counsel has executed and,

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at the request of any party, filed with the Court the agreement of such party(ies) and such counsel

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to be fully bound by this Order.

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19.

Nothing in this Order shall be deemed to limit the extent to which counsel for the

parties may advise or represent their respective clients, conduct discovery, prepare for trial,

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present proof at trial, including any document herein, or oppose the production or admissibility of

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any information or documents which have been requested.

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20.

This Order shall remain in full force and effect until such time as it is modified,

amended or rescinded by the Court.
ORDER

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IT IS SO ORDERED.

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Dated: December 3, 2018
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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[PROPOSED] PROTECTIVE ORDER
Case No. 2:14-cv-02234-MCE-CMK:

EXHIBIT A
(Affidavit)

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1. My name is _____________________________________________________. I live
at ________________________________________________________________.
2. I am aware that a Protective Order has been entered in

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__________________________________, pending in the __________________________, and a

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copy thereof has been given to me.

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3. I acknowledge that documents and information designated as confidential pursuant to

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such Protective Order are being disclosed to me only upon the condition that I agree to be subject

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to the jurisdiction of this Court and to that Order. I hereby agree to abide by such Order, subject

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to all penalties prescribed therein, including contempt of Court, for disobedience of said Order. I

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promise that the documents and information given confidential treatment under the Protective

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Order entered in this case will be used by me only in connection with assisting counsel for the

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parties in preparing for litigation of the above-captioned matters. I understand that any use of

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such Confidential Material in any manner contrary to the provisions of the Protective Order will

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subject me to the sanctions of this Court for contempt.

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4. I promise that I will not disclose or discuss such Confidential Materials or information
any person other than the parties and counsel for the parties or members of their staff.

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AMERICAS 95194616
AMERICAS 95194616

[PROPOSED] PROTECTIVE ORDER
PROTECTIVE ORDER
Case No. 2:14-cv-02234-MCE-CMK:
Case No. 2:14-cv-02234-MCE-CMK: