Rivard v. Lowe's Companies, Inc. et al
Filing
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ORDER. Signed by Magistrate Judge Peter C. Lewis on 10/27/2017. (jjg)
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THARPE & HOWELL, LLP
15250 Ventura Blvd., Ninth Floor
Sherman Oaks, California 91403
(818) 205-9955; (818) 205-9944 fax
CHARLES D. MAY, ESQ.; STATE BAR NO.: 129663
DIANA M. RIVERA, ESQ: STATE BAR NO.: 222025
Attorneys for Defendant,
LOWE’S HOME CENTERS LLC
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
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Plaintiff,
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Case No: 3:17-cv-974-CAB-PCL
HELEN RIVARD,
v.
LOWE’S COMPANIES, INC.,
LOWE’S HOME CENTERS, LLC;
15 and Does 1 to 20,
(San Diego County Superior Court Case 372016-00041893-CU-PO-CTL)
ORDER
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Assigned to District Judge Cathy Ann Bencivengo
and Magistrate Judge Jill L. Burkhardt
Defendants.
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Plaintiff HELEN RIVARD (“Plaintiff”) and Defendant LOWE’S HOME
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CENTERS, LLC (“Defendant”) jointly submit this Proposed Order pursuant to
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Federal Rules of Civil Procedure, Rule 26(c)(1) limiting the use and disposition of
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certain information and documents during litigation of this matter.
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Good Cause Statement
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Federal Rules of Civil Procedure, Rule 26(c)(1) states in pertinent part, that the
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Court, upon a showing of good cause may “issue an order to protect a party from
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annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P.
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26(c)(1). In the instant matter, Defendant’s Confidential Documents (as later defined
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herein) contain proprietary and confidential trade secret information relating to
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Defendant’s business practices and its safety - 1 protocol. Defendant derives independent
ORDER
Helen Rivard v. Lowe’s Home Centers, LLC
Case No.: 3:17-cv-974-CAB-JLB
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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
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economic value from maintaining the confidentiality of the policies and procedures set
forth in these Confidential Documents.
Defendant is a retailer in the home improvement industry and has conducted
business in California since 1998.
The home improvement retail industry is very
competitive. As a result of years of investing time and money in research and
investigation, defendant developed the policies contained in the Confidential
Documents for the purposes of maintaining the security and accessibility of its
merchandise, providing quality customer service, and ensuring the safety of its
employees and customers. These policies and procedures, as memorialized in the
Confidential Documents, were created and generated by Lowe’s for Lowe’s, and are
used for the purposes of maintaining safety at its stores and creating efficient and
organized work environments for its employees. As a result, Defendant is able to
minimize the waste of any resources, which is a key factor in generating profitability
for its business.
Defendant derives economic value from maintaining the secrecy of its
Confidential Documents. If disclosed to the public, the trade secret information
contained in Defendant’s Confidential Documents would reveal Defendant’s internal
operations and could potentially be used by competitors as a means to compete for its
customers, interfere with its business plans and thereby gain unfair business
advantages. If Defendant’s safety protocol were revealed to the general public, it
would hinder Defendant’s ability to effectively resolve and minimize liability claims,
and its goal of protecting its customers and employees from theft and other crimes.
Unrestricted or unprotected disclosure of such information would result in prejudice
or harm to Defendant by revealing Lowe’s competitive confidential information,
which has been developed at the expense of Lowe’s and which represents valuable
tangible and intangible assets. An order of the Court is needed in this case to enable
the Court to enforce the stipulated agreement between the parties in the event of
-2ORDER
Helen Rivard v. Lowe’s Home Centers, LLC
Case No.: 3:17-cv-974-CAB-JLB
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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
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violation of such agreement by either party. Accordingly, the parties respectfully
submit that there is good cause for the entry of a Protective Order in this case.
The parties having agreed to the following terms governing the treatment of
confidential information, and the Court having found that good cause exists for
issuance of an appropriately-tailored confidentiality order governing the pre-trial
phase of this action, it is HEREBY ORDERED as follows: The parties, therefore,
agree as follows:
1.
All documents produced or information disclosed and any other
documents or records designated as “CONFIDENTIAL” by the Defendant shall be
revealed only to a settlement officer, court personnel, Plaintiff, counsel of record in
this case, paralegals and secretarial employees under counsel’s direct supervision, and
such persons as are employed by counsel to act as experts in this action. Documents
or records designated as “CONFIDENTIAL” may be used in support of motions or at
trial in the instant case. To the extent any documents or information covered by this
Stipulation will be used at trial, the parties will make arrangements with the trial judge
regarding the handling of said documents, records and/or information during trial. The
information designated as “CONFIDENTIAL” and disclosed only in accord with the
terms of this paragraph may include, without limitation, documents and information
containing Defendant’s policies and procedures, as well as personnel records,
including disciplinary records, identity, information relating to the processes,
operations, type of work, or apparatus, or the production, sales, shipments, transfers,
identification of customers, inventories, amount or source of income, profits, losses,
expenditures, or any research, development, or any other commercial information
supplied by the Defendant in response to Plaintiff’s Interrogatories or Requests for
Production.
Information and documentation considered “CONFIDENTIAL” are
subject to protection under Rule 26 of the Federal Rules of Civil Procedure, and under
other provisions of Federal law.
-3ORDER
Helen Rivard v. Lowe’s Home Centers, LLC
Case No.: 3:17-cv-974-CAB-JLB
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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
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2.
or disclosed by the Defendant solely for the purposes of preparation for and trial of
this action. Under no circumstances shall information or materials covered by this
Stipulation be disclosed to anyone other than court personnel, Plaintiff’s counsel of
record in this action, paralegals, secretarial employees under counsel’s direct
supervision, and such persons employed to act as experts in this action. At the
conclusion of the proceedings in this action, all documents and information subject to
this Stipulation, including any copies or extracts or summaries thereof, or documents
containing information taken therefrom, shall be returned to counsel for the Defendant,
at defense counsel’s written request.
3.
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Prior to disclosure of any documents designated as “confidential” to
paralegals or secretarial employees of counsel or Plaintiff, counsel for Plaintiff shall
require such employees to read this Stipulation and any Orders of the Court pursuant
hereto and agree to be bound by its terms.
4.
If counsel for Plaintiff determines that for purposes of this action,
documents or information produced by the Defendant and designated as “confidential”
must be revealed to a person employed to act as an expert in this action, then counsel
may reveal the designated documents or information to such person, after first
complying with the following:
(a)
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Counsel for Plaintiff shall use all documents and information produced
Counsel for the Plaintiff shall have the expert read this Order and shall
explain the contents thereof to such expert.
(b)
Counsel for the Plaintiff shall require such expert to sign a copy of this
protective order that states: “I have read and understood the terms of this
protective order. I further agree to be bound by its terms.” Nothing in
this paragraph shall be deemed to enlarge the right of Defendant to
conduct discovery of any of Plaintiff’s experts, except solely with respect
to the ability of such expert to protect confidential information and
documents from re-disclosure.4 -
ORDER
Helen Rivard v. Lowe’s Home Centers, LLC
Case No.: 3:17-cv-974-CAB-JLB
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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
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5.
The Court’s Order pursuant to this Stipulation is subject to revocation and
modification by Order of the Court upon written stipulation of the parties, or upon
motion and reasonable notice, including opportunity for hearing and presentation of
evidence.
6.
Nothing contained in this Stipulation is intended or should be construed
as authorizing a party in this action to disobey a lawful subpoena issued in another
action.
Based on the foregoing, Plaintiff HELEN RIVARD and Defendant LOWE’S
HOME CENTERS, LLC hereby request that this Court issue a protective
order governing the treatment of confidential information in this matter.
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATE: DATE: October 27, 2017
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Peter C. Lewis
United States Magistrate Judge
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-5ORDER
Helen Rivard v. Lowe’s Home Centers, LLC
Case No.: 3:17-cv-974-CAB-JLB
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PROOF OF SERVICE
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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
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1. At the time of service I was at least 18 years of age and not a party to this legal action.
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2. My business address is 15250 Ventura Boulevard, Ninth Floor, Sherman Oaks, CA 91403.
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3. I served copies of the following documents (specify the exact title of each document served):
[PROPOSED] ORDER
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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
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4. I served the documents listed above in item 3 on the following persons at the addresses listed:
George E. Fleming, Esq,
Melisa McKellar, Esq.
FLEMING, PC
4225 Executive Square, No. 200
La Jolla, CA 92034
(858) 554-0500; (858) 554-0673 – Fax
Attorneys for Plaintiff,
HELEN RIVARD
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5. a.
By personal service. I personally delivered the documents on the date shown
below to the persons at the addresses listed above in item 4. (1) For a party
represented by an attorney, delivery was made to the attorney or at the attorney's
office by leaving the documents in an envelope or package clearly labeled to
identify the attorney being served with a receptionist or an individual in charge of
the office. (2) For a party delivery was made to the party or by leaving the
documents at the party's residence between the hours of eight in the morning and six
in the evening with some person not less than 18 years of age.
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b.
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By United States mail. I enclosed the documents in a sealed envelope or package
addressed to the persons at the addresses in item 4 and (specify one):
(1)
(2)
deposited the sealed envelope with the United States Postal Service, with
the postage fully prepaid on the date shown below, or
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placed the envelope for collection and mailing on the date shown below,
following our ordinary business practices. I am readily familiar with this
business's practice for collecting and processing correspondence for
mailing. On the same day that correspondence is placed for collection and
mailing, it is deposited in the ordinary course of business with the United
States Postal Service, in a sealed envelope with postage fully prepaid.
I am a resident or employed in the county where the mailing occurred. The envelope
or package was placed in the mail at Sherman Oaks, California.
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-6ORDER
Helen Rivard v. Lowe’s Home Centers, LLC
Case No.: 3:17-cv-974-CAB-JLB
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c.
By overnight delivery. I enclosed the documents on the date shown below in an
envelope or package provided by an overnight delivery carrier and addressed to the
person at the addresses in item 4. I placed the envelope or package for collection and
overnight delivery at an office or a regularly utilized drop box of the overnight delivery
carrier.
d.
By messenger service. I served the documents on the date shown below by placing
them in an envelope or package addressed to the person on the addresses listed in
item 4 and providing them to a professional messenger service for service.
e.
By fax transmission. Based on an agreement of the parties to accept service by fax
transmission, I faxed the documents on the date shown below to the fax numbers of
the persons listed in item 4. No error was reported by the fax machine that I used. A
copy of the fax transmission, which I printed out, is attached to my file copy.
f.
By e-mail or electronic transmission. Based on an agreement of the parties to
accept service by e-mail or electronic transmission, I caused the documents to be sent
on the date shown below to the e-mail addresses of the persons listed in item 4. I did
not receive within a reasonable time after the transmission any electronic message or
other indication that the transmission was unsuccessful.
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THARPE & HOWELL, LLP
15250 Ventura Boulevard, Ninth Floor
Sherman Oaks, California 91403-3221
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6. I served the documents by the means described in item 5 on (date): See below
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I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.
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DATE
(TYPE OR PRINT NAME)
(SIGNATURE OF DECLARANT)
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I:\28000-000\28182\Discovery\Federal\Proposed Order.docx
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-7ORDER
Helen Rivard v. Lowe’s Home Centers, LLC
Case No.: 3:17-cv-974-CAB-JLB
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