Flowers v. Walmart, Inc.
Filing
9
STIPULATED PROTECTIVE ORDER - The parties' joint motion for entry of a Protective Order, (Filing No. #8 ), is granted. The Court enters the following Protective Order governing the disclosure of confidential Discovery Material by a Producing Party to a Receiving Party in this Action. Ordered by Magistrate Judge Jacqueline M. DeLuca. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JENNIFER FLOWERS,
Case No. 4:24-cv-03094
Plaintiff,
v.
STIPULATED PROTECTIVE ORDER
WALMART, INC.,
Defendant.
The parties’ joint motion for entry of a Protective Order, (Filing No. 8), is
granted. The Court enters the following Protective Order governing the disclosure of
confidential Discovery Material by a Producing Party to a Receiving Party in this Action.
1) Definitions. As used in this Order:
a. Action refers to the above-captioned litigation.
b. Discovery Material includes all information exchanged between the parties,
whether gathered through informal requests or communications between
the parties or their counsel, or gathered through formal discovery conducted
pursuant to Rules 30 through 36, and Rule 45. Discovery Material includes
information within documents, depositions, deposition exhibits, and other
written, recorded, computerized, electronic or graphic matter, copies, and
excerpts or summaries of documents disclosed as required under Rule
26(a).
c. A Producing Party is a party to this litigation, or a non-party either acting on
a party’s behalf or responding to discovery pursuant to a Rule 45 subpoena,
that produces Discovery Material in this Action.
d. A Receiving Party is a party to this litigation that receives Discovery Material
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from a Producing Party in this Action.
2) Confidential Discovery Material. This Protective Order applies to all
confidential Discovery Material produced or obtained in this case. For the
purposes of this Protective Order, confidential Discovery Material shall include:
a. Commercial information relating to any party’s business including, but not
limited to, tax data, financial information, financial or business plans or
projections,
proposed
strategic
transactions
or
other
business
combinations, internal audit practices, procedures, and outcomes, trade
secrets or other commercially sensitive business or technical information,
proprietary business and marketing plans and strategies, studies or
analyses by internal or outside experts, competitive analyses, customer or
prospective customer lists and information, profit/loss information, product
or service pricing or billing agreements or guidelines, and/or confidential
project-related information;
b. Personnel data of the parties or their employees, including but not limited
to employment application information; the identity of and information
received from employment references; wage and income information;
benefits information; employee evaluations; medical evaluation and
treatment information and records; counseling or mental health records;
educational
records;
and
employment
counseling,
discipline,
or
performance improvement documentation;
c. Information concerning settlement discussions and mediation, including
demands or offers, arising from a dispute between a party and a non-party;
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d. Medical or mental health information;
e. Records restricted or prohibited from disclosure by statute; and
f. Any information copied or extracted from the previously described
materials, including all excerpts, summaries, or compilations of this
information or testimony, and documentation of questioning, statements,
conversations, or presentations that might reveal the information contained
within the underlying confidential Discovery Material.
3) Manner of Confidential Designation. A Producing Party shall affix a
“CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER” designation to any
confidential Discovery Material produced in this Action.
a. As to documentary information (defined to include paper or electronic
documents, but not transcripts of depositions or other pretrial or trial
proceedings), the Producing Party must affix the legend “CONFIDENTIAL;
SUBJECT TO PROTECTIVE ORDER” to each page that contains protected
material.
b. If only a portion or portions of the information on a document page qualifies
for protection, the Producing Party must clearly identify the protected
portion(s) (e.g., by using highlighting, underlining, or appropriate markings
in the margins).
c. If it is not feasible to label confidential Discovery Material as
“CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER,” the Producing
Party shall indicate via cover letter or otherwise at the time of production
that the material being produced is CONFIDENTIAL; SUBJECT TO
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PROTECTIVE ORDER.
4) Timing of Confidential Designation.
a. Except as otherwise stipulated or ordered, or where discovery is made
available for inspection before it is formally disclosed, Discovery Material
that qualifies for protection under this Order must be clearly so designated
before the material is disclosed or produced.
b. If the Producing Party responds to discovery by making Discovery Material
available for inspection, the Producing Party need not affix confidential
designations until after the Receiving Party has selected the material it
wants to receive. During the inspection and before the designation, all
material made available for inspection is deemed “CONFIDENTIAL;
SUBJECT TO PROTECTIVE ORDER.” After the Receiving Party has
identified the Discovery Material it wants produced, the Producing Party
must determine which materials, or portions thereof, qualify for protection
under this Order, and designate the materials as “CONFIDENTIAL;
SUBJECT TO PROTECTIVE ORDER” as required under this order.
5) Qualified Recipients. For the purposes of this Protective Order, the persons
authorized to receive Discovery Material designated as “CONFIDENTIAL;
SUBJECT TO PROTECTIVE ORDER” (hereinafter “Qualified Recipients”) are:
a. The Parties, including any members, council members, officers, board
members, directors, employees, or other legal representatives of the
parties;
b. Legal counsel representing the parties, and members of the paralegal,
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secretarial, or clerical staff who are employed by, retained by, or assisting
such counsel; including vendors who are retained to copy documents or
electronic files, provide technical, litigation support, or mock trial services,
or provide messenger or other administrative support services;
c. Any non-expert witness during any deposition or other proceeding in this
Action, and counsel for that witness;
d. Potential witnesses and their counsel, but only to the extent reasonably
related to the anticipated subject matter of the potential witness’s
deposition, trial, or hearing testimony for this Action, so long as such
persons agree to maintain the confidential Discovery Material in confidence
per the terms of this Order, and provided that such persons may only be
shown copies of confidential Discovery Material and may not retain any
such material;
e. Consulting or testifying expert witnesses who will be providing professional
opinions or assistance for this Action based upon a review of the
CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER information, and
the staff and assistants employed by the consulting or testifying experts;
f. Any mediator or arbitrator retained by the parties to assist with resolving
and/or settling the claims of this Action and members of the arbitrator’s or
mediator’s staff and assistants;
g. The parties’ insurers for this Action, and their staff and assistants, members,
officers, board members, directors or other legal representatives;
h. Court reporters for depositions taken in this Action, including persons
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operating video recording equipment and persons preparing transcripts of
testimony;
i. The court and its staff, any court reporter or typist recording or transcribing
hearings and testimony, and jurors; and
j. Any auditor or regulator of a party entitled to review the confidential
Discovery Material due to contractual rights or obligations, or federal or
state laws, or court orders, but solely for such contractual or legal purposes.
6) Dissemination by the Receiving Party. Counsel for the Receiving Party shall:
a. Require Qualified Recipients who are non-expert witnesses or expert
witnesses and consultants and who receive information designated as
“CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER” to review and
agree to the terms of this Protective Order and execute a copy of the
Agreement attached hereto as Appendix A before receiving confidential
Discovery Material.
b. Instruct witnesses, consultants, and outside counsel who assist with case
preparation or represent a witness that disclosure of the information
designated as “CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER” is
prohibited as set forth herein.
c. Maintain a list of any confidential Discovery Material disclosed and to whom,
along with the executed copies of the Appendix A Agreement.
The prohibition on disclosing information designated as “CONFIDENTIAL;
SUBJECT TO PROTECTIVE ORDER” exists and is enforceable by the court even if the
person receiving the information fails or refuses to sign the Appendix A Agreement.
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7) Duty as to Designations.
Each
Producing
Party
that
designates
information or items as CONFIDENTIAL; SUBJECT TO PROTECTIVE
ORDER must exercise reasonable care to limit any such designation to specific
material that qualifies under the appropriate standards, and designate only
those parts of material, documents, items, or oral or written communications
that qualify, so that other portions of the material, documents, items, or
communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order. Broadly described, indiscriminate, or
routinized designations are prohibited.
8) Limitations on Use. Confidential Discovery Material shall be used by the
Receiving Party only to prepare for and conduct proceedings herein and not for
any business or other purpose whatsoever. The parties acknowledge that some
of the information produced in this case may be protected health information,
or contain such information, within the meaning of the Health Insurance
Portability and Accountability Act (HIPAA). Consistent with 45 C.F.R. §
164.512(e)(1)(iv)(v), and as to the health information requested, counsel and
the Receiving Party:
a. Shall not use or disclose the information for any purpose other than the
litigating this Action;
b. Shall return or destroy the protected health information (including all copies
made) at the end of this Action; and
c. Shall request, use and disclose only the minimum amount necessary to
conduct this Action.
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9) Maintaining
Confidentiality.
Discovery
Material
designated
as
“CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER” shall be held in
confidence by each Qualified Recipient to whom it is disclosed, shall be used
only for purposes of this action, and shall not be disclosed to any person who
is not a Qualified Recipient. Each party, each Qualified Recipient, and all
counsel representing any party, shall use their best efforts to maintain all
information designated as “CONFIDENTIAL; SUBJECT TO PROTECTIVE
ORDER” in such a manner as to prevent access, even at a hearing or trial, by
individuals who are not Qualified Recipients. Nothing herein prevents
disclosure beyond the terms of this Protective Order if the party claiming
confidentiality consents in writing to such disclosure.
10)
Copies. Discovery Material designated as “CONFIDENTIAL; SUBJECT TO
PROTECTIVE ORDER” shall not be copied or otherwise reproduced by the
Receiving Party, except for transmission to Qualified Recipients, without the
written permission of the Producing Party or, in the alternative, by order of the
court. However, nothing herein shall restrict a Qualified Recipient from loading
confidential documents into document review platforms or programs for the
purposes of case or trial preparation or making working copies, abstracts,
digests, and analyses of information designated as “CONFIDENTIAL;
SUBJECT TO PROTECTIVE ORDER” under the terms of this Protective Order.
11)
Docket Filings. All documents of any nature including, but not limited to,
briefs, motions, memoranda, transcripts, discovery responses, evidence, and
the like that are filed with the court for any purpose and that contain Discovery
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Material designated as “CONFIDENTIAL; SUBJECT TO PROTECTIVE
ORDER” shall be provisionally filed under restricted access with the filing
party’s motion for leave to file restricted access documents. A party seeking to
file Discovery Material under restricted access must comply with the court’s
rules and electronic docketing procedures for filing such motions.
12)
to
Depositions. The following procedures shall be followed at all depositions
protect
the
integrity
of
all
Discovery
Material
designated
as
“CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER”:
a. Only Qualified Recipients may be present at a deposition in which such
information is disclosed or discussed.
b. All deposition testimony which discloses or discusses information
designated as “CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER” is
likewise
deemed
designated
as
“CONFIDENTIAL;
SUBJECT
TO
PROTECTIVE ORDER”.
c. Information designated as “CONFIDENTIAL; SUBJECT TO PROTECTIVE
ORDER” may be used at a nonparty deposition only if necessary to the
testimony of the witness.
13)
Challenges to Confidentiality Designations. A Receiving Party that
questions the Producing Party’s confidentiality designation will, as an initial
step, contact the Producing Party and confer in good faith to resolve the
dispute. If the parties are unable to resolve the dispute without court
intervention, they shall schedule a conference call with the magistrate judge
assigned to the case before engaging in written motion practice. If a written
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motion and briefing are necessary and the information in dispute must be
reviewed by the court to resolve that motion, the confidential information shall
be filed under restricted access pursuant to the court’s electronic docketing
procedures. The party that produced the information designated as
“CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER” bears the burden of
proving it was properly designated. The party challenging a “CONFIDENTIAL;
SUBJECT TO PROTECTIVE ORDER” designation must obtain a court order
before disseminating the information to anyone other than Qualified Recipients.
14)
Use at Court Hearings and Trial. Subject to the Federal Rules of
Evidence, Discovery Material designated as “CONFIDENTIAL; SUBJECT TO
PROTECTIVE ORDER” may be offered and received into evidence at trial or
at any hearing or oral argument. A party agreeing to the entry of this order does
not thereby waive the right to object to the admissibility of the material in any
proceeding, including trial. Any party may move the court for an order that
Discovery
Material
designated
as
“CONFIDENTIAL;
SUBJECT
TO
PROTECTIVE ORDER” be reviewed in camera or under other conditions to
prevent unnecessary disclosure.
15)
Return or Destruction of Documents. Upon final termination of this
Action, including all appeals, each party shall make reasonable efforts to
destroy all Discovery Material designated as “CONFIDENTIAL; SUBJECT TO
PROTECTIVE ORDER.” The destroying party shall notify the producing party
when destruction under this provision is complete. If a party is unable to destroy
all Discovery Material designated as “CONFIDENTIAL; SUBJECT TO
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PROTECTIVE ORDER,” that material shall be returned to the Producing Party
or the Producing Party’s counsel. This Protective Order shall survive the final
termination of this action, and it shall be binding on the parties and their legal
counsel in the future.
16)
Modification. This Protective Order is entered without prejudice to the right
of any party to ask the court to order additional protective provisions, or to
modify, relax or rescind any restrictions imposed by this Protective Order when
convenience or necessity requires. Disclosure other than as provided for herein
shall require the prior written consent of the Producing Party, or a supplemental
Protective Order of the court.
17)
Additional Parties to Litigation. In the event additional parties are joined
in this action, they shall not have access to Discovery Material as
“CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER” until the newly joined
party, by its counsel, has executed and, at the request of any party, filed with
the court, its agreement to be fully bound by this Protective Order.
18)
Sanctions.
a. Any party subject to the obligations of this order who is determined by the
court to have violated its terms may be subject to sanctions imposed by the
court under Rule 37 of the Federal Rules of Civil Procedure and the court’s
inherent power.
b. Confidentiality designations that are shown to be clearly unjustified or that
have been made for an improper purpose (e.g., to unnecessarily prolong or
encumber the case development process or to impose unnecessary
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expenses and burdens on other parties) expose the designating party to
sanctions. Upon discovering that information was erroneously designated
as CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER, the Producing
Party shall promptly notify all other Parties of the improper designation
19)
Inadvertent Disclosure of Protected Discovery Material.
a. A Producing Party that inadvertently fails to properly designate Discovery
Material as “CONFIDENTIAL; SUBJECT TO PROTECTIVE ORDER” shall
have 14 days from discovering the oversight to correct that failure. Such
failure shall be corrected by providing written notice of the error to every
Receiving Party.
b. Any Receiving Party notified that confidential Discovery Material was
received without the appropriate confidentiality designation as authorized
under this order shall make reasonable efforts to retrieve any such
documents distributed to persons who are not Qualified Recipients under
this order, and as to Qualified Recipients, shall exchange the undesignated
or improperly designated documents with documents that include the
correct
“CONFIDENTIAL;
SUBJECT
TO
PROTECTIVE
ORDER”
designation.
20)
Disclosure of Privileged or Work Product Discovery Material.
a. The production of attorney-client privileged, or work-product protected
electronically stored information (“ESI”) or paper documents, whether
disclosed inadvertently or otherwise, is not a waiver of the privilege or
protection from discovery in this case or in any other federal or state
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proceeding. This Protective Order shall be interpreted to provide the
maximum protection allowed by Federal Rule of Evidence 502(d). Nothing
contained herein is intended to or shall serve to limit a party’s right to
conduct a review of documents, ESI or information (including metadata) for
relevance, responsiveness and/or segregation of privileged and/or
protected information before production.
b. Any party who discloses documents that are privileged or otherwise immune
from discovery shall promptly upon discovery of such disclosure, advise the
Receiving Party and request that the documents be returned. The Receiving
Party shall return such produced documents or certify their destruction,
including all copies, within 14 days of receiving such a written request. The
party returning such produced documents may thereafter seek reproduction of any such documents pursuant to applicable law.
Dated this 5th day of June 2024.
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