Farley v. Family Dollar Stores, Inc. et al

Filing 45

PROTECTIVE ORDER, by Judge R. Brooke Jackson on 02/27/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 12-cv-00325-RBJ-MJW
JULIE FARLEY, on behalf of herself and all similarly situated persons,
Plaintiff,
v.
FAMILY DOLLAR STORES, INC. and FAMILY DOLLAR STORES OF
COLORADO, INC.,
Defendants.
STIPULATED PROTECTIVE ORDER
Upon consideration of the Unopposed Motion for Protective Order filed by
Defendants Family Dollar Stores, Inc. and Family Dollar Stores of Colorado, Inc.
(collectively “Family Dollar”), and upon this Court’s finding that good cause exists
for the issuance of a Stipulated Protective Order, IT IS ORDERED as follows:
1.

This Order shall govern all documents and electronically stored

information (“ESI”) produced by the parties in this action, which are more
particularly described or identified herein. Furthermore, this Order shall govern
all information derived from such documents and ESI and all copies, excerpts, or
summaries thereof.

Personal Private Information
2.

The following types of information and documents are deemed

“Personal Private Information” (or “PPI”) and are subject to protection from
disclosure as described herein:
a.

Any documents and/or ESI, whether from personnel or

employment files, or otherwise, of any applicants, employees or former
employees of Family Dollar, that identify any applicant, current or former
employee by name and/or social security number, including employee
dependents and family members, and from which any of the following
information can be derived or ascertained: the person’s social security
number, compensation (including bonus, salary or incentive pay), personal
financial information (including personal bank account or other financial
institution information or numbers), medical history or conditions or
treatment (including psychotherapy or other counseling, and substance abuse
or substance abuse treatment), arrests or criminal convictions, or credit
history;
b.

Any documents and/or ESI, whether from personnel or

employment files, or otherwise, that contain or refer or pertain to, the
addresses, telephone numbers, wages and salaries, job performance, job
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duties, and/or other personal information of any applicants, employees or
former employees of Family Dollar.
3.

The parties may use PPI in affidavits, briefs, memoranda of law, oral

argument, or other papers filed with this Court in this litigation only if the party
making such disclosure redacts the following information: financial account
numbers; individual financial information; social security numbers (showing only
last four digits); personal identifying numbers such as driver’s license numbers;
dates of birth (showing only the year), home addresses (showing only city and
state); medical records, treatment and diagnoses; employment history other than
with Family Dollar; arrests or criminal convictions; and credit history. The parties
acknowledge and agree that the provisions contained herein regarding the
treatment of PPI are compliant in all respects with Fed. R. Civ. P. 5.2 but that the
protections contained in this agreement are in addition to the requirements of that
rule.
4.

If documents or ESI containing PPI cannot be redacted in a manner

that renders them meaningful and useful in this litigation, then they can be filed or
used in unredacted form only in the same manner as “Confidential Information”
described in paragraphs 7(a)-(d) of this Order.
Confidential Information
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5.

The following types of information and documents are deemed

confidential (“Confidential Information”) in this matter:
a.

Any documents and/or ESI, whether from personnel or

employment files, or otherwise, of any applicants, employees or former
employees of Family Dollar, that identify any applicant, current or former
employee by name and/or social security number, including employee
dependents and family members, and from which any of the following
information can be derived or ascertained: the person’s social security
number, compensation (including bonus, salary or incentive pay), personal
financial information (including personal bank account or other financial
institution information or numbers), medical history or conditions or
treatment (including psychotherapy or other counseling, and substance abuse
or substance abuse treatment), arrests or criminal convictions, or credit
history;
b.

Any documents and/or ESI, whether from personnel or

employment files, or otherwise, that contain or refer or pertain to, the
addresses, telephone numbers, wages and salaries, job performance, job
duties, and/or other personal information of any applicants, employees or
former employees of Family Dollar;
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c.

Any Family Dollar documents or ESI containing, or referring or

pertaining to, any proprietary or confidential information within Family
Dollar’s industry or business, such as, but not limited to, business strategies
and plans, policies or procedures, budgets, financial information or
statements not available to the general public, internal audits such as, but not
limited to the Radzely Report, client lists, tables, schedules, economic
forecasts, or training information or study books or aids, or any other
practices, guidelines and/or similar material used by Family Dollar relating
to same;
d.

Any Family Dollar documents or ESI containing, or referring or

pertaining to, information relating to any of its customers, suppliers or
vendors;
e.

Any Family Dollar documents, ESI or non-public reports

regarding productivity, costs, business methods, store profit and loss
statements and related company records of individual store revenue
performance, or customer satisfaction;
f.

Any other documents or ESI which a party believes in good

faith, as being “confidential” or “proprietary.”

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6.

Any information marked as Confidential shall be treated as provided

below.
a.

Whenever a deposition involves the disclosure of Confidential

Information, the deposition or portions thereof shall be designated as
Confidential and shall be subject to the provisions of this Protective Order.
Such designation shall be made on the record during the deposition
whenever possible, but a party may designate portions of depositions as
Confidential after transcription, provided written notice of the designation is
promptly given to all counsel of record within forty-five (45) days after
notice by the court reporter of the completion of the transcript. All
transcripts shall be treated as Confidential until the forty-five day
designation period has passed.
b.

If a party wishes to use any Confidential Information in any

affidavits, briefs, memoranda of law, oral argument, or other papers filed in
this Court in this litigation, it must file the documents containing such
Confidential Information under seal in accordance with D.C.COLO.LCivR.
7.2.
c.

Except as otherwise directed by this Court, Confidential

Information produced by the parties and protected by this Order shall be
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revealed only to: (i) in-house counsel for the parties, (ii) counsel of record
(including law firm employees) for the parties in this action, (iii) their
experts or consultants, and (iv) the Court and Court personnel for any
purpose the Court finds necessary.
d.

With the exception of persons identified in subparts (i) through

(iv) of paragraph 7(c) no person entitled to access protected Confidential
Information under this Order shall be provided with the protected
documents, ESI or other Confidential Information unless such individual
has: (i) read the Order of this Court, and (ii) completed and signed the
affidavit attached hereto as Exhibit A. No person entitled to access to
Confidential Information shall discuss the contents of any such materials
with any other individual, except those individuals who are also permitted to
view, inspect or examine the materials protected herein. If counsel wishes to
share Confidential Information with anyone else other than persons
identified in subparts (i) through (iv) of paragraph 7(c), counsel must seek
approval from the producing party to do so. Nothing in this Order shall
restrict or limit Plaintiffs’ counsel’s ability to advise or inform Plaintiffs
about general trends, averages or patterns which they have identified in the
protected information or documents; however, counsel may not disclose to
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the Plaintiffs, directly or indirectly, any specific information or data related
to any particular individual(s) other than the Plaintiffs.
Provisions Pertaining To All Protected Material
7.

PPI and Confidential Information shall be collectively referred to

herein as “Protected Material.”
8.

Any documents or ESI described above shall be identified as PPI or

Confidential Information by clearly stamping or marking the document or ESI
(including any interrogatory answer or transcript) with “PERSONAL PRIVATE
INFORMATION” or “CONFIDENTIAL” at the time of production by stamp,
marking, or reference to Bates number(s) of the documents or physical medium
by which the information is transmitted.
9.

A party producing Protected Material in an electronically-stored

format shall stamp the physical medium by which the information is transmitted
(e.g. computer tape, computer disk, CD Rom, etc.) as "CONFIDENTIAL"
and/or “PERSONAL PRIVATE INFORMATION.” If the party to whom such
electronically stored information is produced shall create any readable report or
output from such confidential data, that party shall prominently label each page
of such output report “CONFIDENTIAL” and/or “PERSONAL PRIVATE
INFORMATION.”
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10. In the event that a party inadvertently fails to designate a document or
ESI as Protected Material at the time of production, the party may so designate
it/them after-the-fact, thereby protecting the material pursuant to this Order. The
inadvertent or unintentional disclosure of any Protected Material shall not be
construed to be a waiver, in whole or part, of any party’s claim of privacy or
confidentiality, either as to the specific information disclosed or as to other
related information.
11. A non-party witness may designate documents or ESI produced in
response to a subpoena or written discovery request as Protected Material, by
following the procedures outlined in paragraphs 9 and 10 above.
12. This Order is limited to the context of pretrial discovery. Nothing in
this Order shall be read to restrict or promote any limitations which may be
placed on the use of Protected Material at trial. If this case goes to trial, the
parties agree to cooperate in terms of protecting Protected Material.
13. Protected Material produced to any party or to others pursuant to the
terms of this Order shall be used for the sole and limited purpose of prosecuting
or defending this lawsuit, which includes all matters before this Court, including
without limitation, any appeals and any entry of an order, judgment or decree
finally disposing of all litigation.
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14. Within thirty (30) days of the conclusion of the litigation, all Protected
Material, and all documents, ESI and materials containing such Protected
Material, including any and all copies, physical medium by which ESI was
transmitted, and readable reports or output from the physical medium by which
ESI was transmitted, shall be returned to the producing party. In the alternative,
within thirty (30) days of the conclusion of the litigation, counsel for each party
shall notify counsel for the opposing parties, in writing, that any and all such
Protected Material, documents, ESI, the physical medium by which ESI was
transmitted, and other material, including copies of such documents, ESI and
material, and readable reports or output from the physical medium by which ESI
was transmitted, produced by the opposing parties, has been destroyed. All
copies, summaries and abstracts of such Protected Material, however
maintained, shall be kept completely confidential for the duration of the
litigation and at the conclusion of the litigation, shall be returned or destroyed
pursuant to the terms of this paragraph. If Protected Material is furnished to a
testifying or consulting expert, the attorney for the party using such expert shall
have the responsibility of ensuring that all such Protected Material, including
copies of such documents, ESI, readable reports or output from the physical

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medium by which ESI was transmitted, abstracts or summaries thereof is
returned to the producing party or destroyed.
15. Following termination of this litigation, the provisions of this Order
relating to Protected Material shall continue to be binding, except with respect to
documents or information that are no longer confidential. This Court retains
jurisdiction over all persons provided access to Protected Material for
enforcement of the provisions of this Order following termination of this action
and the final conclusion of this action.
16. Any party in receipt of a subpoena, official agency request for
information or other legal process seeking documents, ESI or other information
designated as Protected Material by another party or entity hereunder, shall first
notify the other party or entity which designated the information, in writing, of
its intention to comply with that subpoena, agency request or legal process and
shall give the designating party or entity sufficient notice to enable that party or
entity to seek a protective order or otherwise take action to prevent disclosure. A
party intending disclosure pursuant to a subpoena, agency request for
information or other legal process shall not disclose the information sought until
the objecting party or entity has unsuccessfully exhausted all available legal or
administrative procedures for resisting such disclosure, unless ordered by a court
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to do so; provided, however, that if the objecting party or entity does not act to
protect its interests in accordance with applicable procedural rules, including
rules governing the time within action must be taken, the other party shall be
entitled to disclose.
17. If any party elects to challenge the designation as to any Protected
Material pursuant to this Order, that party shall, in writing, notify the party to
which the challenged document, ESI or information belongs or by whom the
challenged document, ESI or information was produced of its challenge within
fifteen (15) days of the receipt of the so designated document, ESI or
information. The producing party shall, within five (5) days of receipt of such
written challenge, be obligated to set forth the basis and grounds upon which
such designation was made, and the parties shall promptly confer in a good faith
effort to resolve any further disagreement before requesting intervention of the
Court. If a party, after such efforts, which shall be pursued for at least ten (10)
days unless exigent circumstances make such pursuit of efforts impractical or
prejudicial, continues to object to the designation of any document, testimony,
information or material as Protected Material and so notifies the designating
party in writing, the designating party may, by motion filed within ten (10) days
after receipt of notice in writing from the disputing party, apply to the Court for
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a ruling that the document, testimony, information or material shall be treated as
PPI or Confidential as stamped. The burden of establishing the private or
confidential nature of the document or ESI, once challenged by the above
procedure, is upon the party designating it as such. All documents, ESI,
testimony or other materials designated by the party as PPI or Confidential,
however, shall be treated as PPI or as Confidential under this Order until such
time as the parties’ contentions regarding the private or confidential nature of
documents so designated are fully and finally adjudicated, including any
appeal(s). If the designating party does not bring such a motion within ten (10)
days of the date of receipt of the notice that an objection has not been resolved,
the challenged document, ESI, testimony, information or material need no longer
be treated as PPI or as Confidential as provided for in this Order.
18.

No provisions of this Order shall be deemed to preclude any party

from challenging the validity of the confidentiality of any Confidential
Information or materials or documents or ESI so designated.
19.

No provisions of this Order shall be deemed to prohibit a party from

disclosing its own Protected Material. However, intentionally doing so removes
all protection provided under this Order.

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20.

Violation by any person of any provision of this Order may be

punishable as contempt of Court. Further, the parties may pursue any and all civil
remedies available to it for breach of the terms of this Order.
21.

This Order may be modified by the Court at any time for good cause

shown, following notice to all parties, and an opportunity for them to be heard.
ORDERED this 27th day of February, 2013.
BY THE COURT:

________________________________________
R. Brooke Jackson
United States District Court Judge

AGREED AND APPROVED:

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s/ Brian D. Gonzales
Brian D. Gonzales
The Law Offices
of Brian D. Gonzales, PLLC
123 North College Ave., Suite 200
Fort Collins, CO 80524

s/ Joshua B. Kirkpatrick
Joshua B. Kirkpatrick
Kalisha Salome Chorba
LITTLER MENDELSON, P.C.
1900 Sixteenth Street
Suite 800
Denver, CO 80202
Telephone: [phone]

s/Peter Winebrake
Peter Winebrake
Winebrake & Santillo, LLC
715 Twining Road, Suite 211
Dresher, PA 19025

s/ John A. Ybarra
LITTLER MENDELSON, P.C.
321 North Clark Street
Suite 1000
Chicago, IL 60654
Telephone: [phone]

ATTORNEYS FOR PLAINTIFF

s/ William F. Allen
LITTLER MENDELSON, P.C.
1150 17th Street NW
Suite 900
Washington, D.C. 20036
Telephone: [phone]
ATTORNEYS FOR DEFENDANTS
FAMILY DOLLAR STORES, INC.
AND FAMILY DOLLAR STORES
OF COLORADO, INC.

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 12-cv-00325-RBJ-MJW
JULIE FARLEY, on behalf of herself and all similarly situated persons,
Plaintiff,
v.
FAMILY DOLLAR STORES, INC. and FAMILY DOLLAR STORES OF
COLORADO, INC.,
Defendants.
WRITTEN ASSURANCE FOR INFORMATION RECIPIENT
I, ________________________________, hereby declare as follows:

1.

I am a representative designated by ________________________, a

party to this action, pursuant to the Stipulated Protective Order (“Order”) of this
Court entered in this case on ______________________, 2013.
2.

A copy of the Order has been delivered to and has been carefully

reviewed by me.
3.

I fully agree to abide by the obligations and conditions set forth in the

Order including, but not limited to, the condition that I will not disclose any
Confidential Information, as defined in the Order, to which I have been given
access other than pursuant to the Order. I further will not use any Confidential
Information for any purpose other than the purpose of this litigation.

4.

I further subject myself to the continuing jurisdiction of the United

States District Court for the District of Colorado for the purpose of proceedings
relating to my performance under, compliance with, or violation of said Order.
I, ___________________________, (signature) hereby declare under
penalty of perjury that the foregoing is true and correct.
DATED this ____ day of ________________________, 2013.

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