Rougeaux v. L Brands, Inc. et al

Filing 27

ORDER Granting 26 Joint Stipulation for Protective Order by Bath & Body Works, LLC, L Brands, Inc., as modified by the Court. Signed by Magistrate Judge Ruben B. Brooks on 4/24/2018.(gac)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CONSUELO ROUGEAUX,

Case No.: 17cv1622-JM(RBB)
Plaintiff,

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v.

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ORDER GRANTING JOINT
MOTION REQUESTING ENTRY OF
PROTECTIVE ORDER [ECF NO. 26]
– AS MODIFIED BY THE COURT

L. BRANDS, INC., et al.,

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Defendants.

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The Court recognizes that at least some of the documents and information

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(“materials”) being sought through discovery in the above-captioned action are, for

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competitive reasons, normally kept confidential by the parties. The parties have

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agreed to be bound by the terms of this Protective Order (“Order”) in this action.

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The materials to be exchanged throughout the course of the litigation between the

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parties may contain trade secret or other confidential research, technical, cost, price,

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marketing or other commercial information, as is contemplated by Federal Rule of

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Civil Procedure 26(c)(l)(G). The purpose of this Order is to protect the confidentiality

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of such materials as much as practical during the litigation. THEREFORE:

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DEFINITIONS
The term “confidential information” will mean and include information and

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materials that have been designated by counsel as “CONFIDENTIAL” or

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“CONFIDENTIAL - FOR COUNSEL ONLY”, which may include documents

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portions of documents, answers to interrogatories, responses to requests for admissions,

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trial testimony, excerpts of deposition testimony, and excerpts of transcripts of trial

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testimony, including data, summaries, and compilations derived therefrom that is

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deemed to be confidential information by any party to which it belongs.

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The term “materials” will be limited to documents as defined by Rule 34 of the

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Federal Rules of Civil Procedure, and confidential information arising from the documents

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identified as:

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a. “Maintenance made easy” training video;

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b. “Store Safety Inspection Form”;

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c. Daily Coverage Overview;

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d. General housekeeping policy;

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e. CSL module;

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f. Emergency Procedures;

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g. Diagram of Store; and

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h. General Safety Matters.

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Prior to the disclosure of additional confidential materials during the course of

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the litigation that are not identified in this Protective Order, the parties agree to meet and

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confer about disclosure of such documents, and the applicability of this Protective Order

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to any such documents.

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3.

The term “counsel” will mean outside counsel of record, and the attorneys,

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paralegals, secretaries, and other support staff employed in the law firms identified below: Hariri

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Law Group for Plaintiff, and Wilson Elser Moskowitz Edelman & Dicker LLP and Perez &

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Morris LLC for Defendants. “Counsel” also includes in-house attorneys and legal staff for

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Defendants.
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GENERAL RULES
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Each party to this litigation that produces or discloses any materials answers to

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interrogatories, responses to requests for admission, trial testimony information that the producing

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party believes should be subject to this Protective Order may designate the same as

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“CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY.”

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a.

Designation as “CONFIDENTIAL”: Any party may designate

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information as “CONFIDENTIAL” only if, in the good faith belief of such party and its

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counsel, the unrestricted disclosure of such information could be potentially prejudicial

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to the business or operations of such party.

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b.

Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”: Any

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party may designate information as “CONFIDENTIAL - FOR COUNSEL ONLY” only

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if, in the good faith belief of such party and its counsel, the information is among that

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considered to be most sensitive by the party, including but not limited to trade secret or

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other confidential research, development, financial or other commercial information.

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5.

In the event the producing party elects to produce materials for inspection, no

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marking need be made by the producing party in advance of the initial inspection. For purposes

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of the initial inspection, all materials produced will be considered as “CONFIDENTIAL - FOR

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COUNSEL ONLY,” and must be treated as such pursuant to the terms of this Order. Thereafter,

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upon selection of specified materials for copying by the inspecting party, the producing party

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must, within a reasonable time prior to producing those materials to the inspecting party, mark the

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copies of those materials that contain confidential information with the appropriate confidentiality

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marking.

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6.

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Whenever a deposition taken on behalf of any party involves a disclosure of

confidential information of any party:
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the deposition or portions of the deposition must be designated as

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containing confidential information subject to the provisions depositions as containing

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confidential information after transcription of the proceedings. A party will have until

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fourteen (14) days after receipt of the deposition transcript to inform the other party or
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parties to the action of the portions of the transcript to be designated

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“CONFIDENTIAL” or “CONFIDENTIAL- FOR COUNSEL ONLY”;

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b.

the disclosing party will have the right to exclude from attendance at

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the deposition, during such time as the confidential information is to be disclosed, any

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person other than the deponent, counsel (including their staff and associates), the court

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reporter, and the person(s) agreed upon pursuant to paragraph 8 below; and

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c.

the originals of the deposition transcripts and all copies of the

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deposition must bear the legend “CONFIDENTIAL” or “CONFIDENTIAL-FOR

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COUNSEL ONLY,” as appropriate, and the original or any copy ultimately presented to

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a court for filing must not be filed unless it can be accomplished under seal, identified as

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being subject to this Order, and protected from being opened except by order of this

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Court.

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7.

All confidential information designated as “CONFIDENTIAL” or

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“CONFIDENTIAL FOR COUNSEL ONLY” must not be disclosed by the receiving party to

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anyone other than those persons designated within this order and must be handled in the manner

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set forth below and, in any event, must not be used for any purpose other than in connection with

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this litigation, unless and until such designation is removed either by agreement of the parties, or

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by order of the Court.

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8.

Information designed “CONFIDENTIAL – FOR COUNSEL ONLY” may be

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viewed only by counsel (as defined in paragraph 3) of the receiving party and by

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independent experts who have signed a certification to keep all such information

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confidential consistent with this Protective Order. Information designated

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“confidential” may be viewed only by counsel (as defined in paragraph 3) of the

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receiving party, by independent experts (pursuant to the terms of this Protective Order),

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by court personnel, and by the additional individuals listed below, provided each such

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individual has read this Order in advance of disclosure and has agreed in writing to be

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bound by its terms:

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a.

Executives who are required to participate in policy decisions with

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reference to this action;

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b.

Technical personnel of the parties with whom Counsel for the parties

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find it necessary to consult, in the discretion of such counsel, in preparation for trial of

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this action; and

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c.

Stenographic and clerical employees associated with the individuals

identified above.
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With respect to material designated “CONFIDENTIAL” or “CONFIDENTIAL –

FOR COUNSEL ONLY,” any person indicated on the face of the document to be its originator,
author or a recipient of a copy of the document, may be shown the same.
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All information which has been designated as “CONFIDENTIAL” or

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“CONFIDENTIAL -FOR COUNSEL ONLY” by the producing or disclosing party, and any and

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all reproductions of that information, must be retained in the custody of the counsel for the

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receiving party identified in paragraph 3, except that independent experts authorized to view such

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information under the terms of this Order may retain custody of copies such as are necessary for

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their participation in this litigation.

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11.

At any stage of these proceedings, any party may object to a designation of the

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materials as confidential information. The party objecting to confidentiality must notify, in

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writing, counsel for the designating party of the objected-to materials and the grounds for the

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objection. If the dispute is not resolved consensually between the parties within seven (7)

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days of receipt of such a notice of objections, the objecting party may move the Court

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for a ruling on the objection. The materials at issue must be treated as confidential

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information, as designated by the designating party, until the Court has ruled on the

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objection or the matter has been otherwise resolved.

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12.

All confidential information must be held in confidence by those inspecting or

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receiving it, and must be used only for purposes of this action. Counsel for each party, and each

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person receiving confidential information must take reasonable precautions to prevent the

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unauthorized or inadvertent disclosure of such information. If confidential information is
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disclosed to any person other than a person authorized by this Order, the party responsible for the

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unauthorized disclosure must immediately bring all pertinent facts relating to the unauthorized

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disclosure to the attention of the other parties and, without prejudice to any rights and remedies of

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the other parties, make every effort to prevent further disclosure by the party and by the person(s)

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receiving the unauthorized disclosure.

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13.

No party will be responsible to another party for disclosure of confidential

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information under this Order if the information in question is not labeled or otherwise identified

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as such in accordance with this Order.

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14.

If a party, through inadvertence, produces any confidential information without

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labeling or marking or otherwise designating it as such in accordance with this Order, the

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designating party may give written notice to the receiving party that the document or thing

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produced is deemed confidential information, and that the document or thing produced should be

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treated as such in accordance with that designation under this Order. The receiving party must

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treat the materials as confidential, once the designating party so notifies the receiving party. If the

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receiving party has disclosed the materials before receiving the designation, the receiving party

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must notify the designating party in writing of each such disclosure. Counsel for the parties will

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agree on a mutually acceptable manner of labeling or marking the inadvertently produced

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materials as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY” -

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SUBJECT TO PROTECTIVE ORDER.

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15.

Nothing within this order will prejudice the right of any party to object to the

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production of any discovery material on the grounds that the material is protected as privileged or

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as attorney work product.

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16.

Nothing in this Order will bar counsel from rendering advice to their clients with

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respect to this litigation and, in the course thereof, relying upon any information designated as

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confidential information, provided that the contents of the information must not be disclosed.

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17.

This Order will be without prejudice to the right of any party to oppose production

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of any information for lack of relevance or any other ground other than the mere presence of

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confidential information. The existence of this Order must not be used by either party as a basis
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for discovery that is otherwise improper under the Federal Rules of Civil Procedure.

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Nothing within this order will be construed to prevent disclosure of confidential

information if such disclosure is required by law or by order of the Court.

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19.

No items will be electronically filed under seal without a prior application

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to, and order from, the judge presiding over the hearing or trial. Only when the judge

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presiding over the hearing or trial permits filing an item or items under seal may

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confidential material be filed with the Court under seal.

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Whenever the Court grants a party permission to file an item under seal, a

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duplicate disclosing all nonconfidential information shall be filed and made part of the

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public record. The item may be redacted to eliminate confidential material from the

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public document. The public document shall be titled to show that it corresponds to an

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item filed under seal, e.g., “Redacted Copy of Sealed Declaration of John Smith in

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Support of Motion for Summary Judgment.” The public redacted documents shall be

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filed within twenty-four hours of the Court order authorizing the filing of a document

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under seal.

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20.

Upon final termination of this action, including any and all appeals, counsel for

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each party must, upon request of the producing party, return all confidential information to the

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party that produced the information, including any copies, excerpts, and summaries of that

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information, or must destroy same at the option of the receiving party, and must purge all such

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information from all machine- readable media on which it resides. Notwithstanding the

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foregoing, counsel for each party may retain all pleadings, briefs, memoranda, motions, and other

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documents filed with the Court that refer to or incorporate confidential information,

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and will continue to be bound by this Order with respect to all such retained

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information. Further, attorney work product materials that contain confidential

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information need not be destroyed, but, if they are not destroyed, the person in

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possession of the attorney work product will continue to be bound by this Order

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with respect to all such retained information.

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21.

The restrictions and obligations set forth within this order will not apply to any

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information that: (a) the parties agree should not be designated confidential information; (b) the

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parties agree, or the Court rules, is already public knowledge; (c) the parties agree, or the Court

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rules, has become public knowledge other than as a result of disclosure by the receiving party, its

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employees, or its agents in violation of this Order; or (d) has come or will come into the receiving

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party's legitimate knowledge independently of the production by the designating party. Prior

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knowledge must be established by pre-production documentation.

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discussions of any confidential information with anyone if that person already has or obtains
legitimate possession of that information.

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23.

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Transmission by e-mail or some other currently utilized method of transmission is

acceptable for all notification purposes within this Order.

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The restrictions and obligations within this order will not be deemed to prohibit

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This Order may be modified by agreement of the parties, subject to approval by the

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The Court may modify the terms and conditions of this Order for good cause, or in

Court.

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the interest of justice, or on its own order at any time in these proceedings. The parties prefer that

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the Court provide them with notice of the Court’s intent to modify the Order and the content of

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those modifications, prior to entry of such an order.

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IT IS SO ORDERED.

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Dated: April 24, 2018

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