Stearns v. Wal-Mart Stores, Inc.

Filing 31

STIPULATED PROTECTIVE ORDER. Ordered by Magistrate Judge F.A. Gossett. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID STEARNS,
Plaintiff,
v.
WAL-MART STORES, INC.,
Defendant.

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Case No. 8:13-cv-00329-LSC-FG3

STIPULATED PROTECTIVE ORDER

The parties believe that certain documents and information have been and may be sought,
produced, or exhibited by and between the parties in this proceeding (the "Proceeding") and that
some of these documents relate to the parties' and non-parties' financial information, competitive
information, or other types of sensitive information which the party making the production
deems confidential.
1.

This Order shall be entered pursuant to the Federal Rules of Civil Procedure and

the Local Rules of the United States District Court, District of Nebraska.
2.

This Order shall govern all documents, the information contained therein, and all

other information produced or disclosed during the Proceeding whether revealed in a document,
deposition, other testimony, discovery response or otherwise, by any party, including any nonparty, in this proceeding (the "Supplying Party") to any other party, including any non-party, (the
"Receiving Party"), when the same is designated with the procedures set forth herein. This Order
is binding upon the parties to the Proceeding, including their respective corporate parents,
subsidiaries, and affiliates, as well as their respective attorneys, agents, representatives, officers,
and employees, and others as set forth in this Order. This Order is also binding on and applies to
all non-parties who either produce or receive documents or information in connection with this
Proceeding.

3.

Under this Order, any Supplying Party shall have the right to identify and

designate as "Confidential" any document or other information it produces or provides, or any
testimony given in this Proceeding, which testimony or discovery material is believed in good
faith by that Supplying Party, and by the Supplying Party's counsel, to constitute, reflect, or
disclose trade secrets or other confidential research, development, or commercial information
contemplated under the Federal Rules of Civil Procedure.
4.

"Confidential Information" as used herein means any Designated Material that is

designated pursuant to this Protective Order as "Confidential" by the Supplying Party, whether it
is a document, information contained in a document, information revealed during a deposition or
other testimony, information revealed in an interrogatory answer, or information otherwise
revealed.
5.

A party may designate as "Confidential" information in the possession of and

supplied by a non-party if the information was transmitted to the non-party under an agreement
or an obligation that it would remain confidential and the information otherwise complies with
Paragraph 4.
6.

All information produced in this action, whether deemed Confidential or not, shall

be used for purposes of this litigation and not for any other purpose.
7.

Documents or information may be designated "Confidential" within the meaning

of this Order in the following ways:
a.

Specific documents produced by the Supplying Party shall, if appropriate, be

designated "Confidential" by marking the first page of the document and each subsequent
page thereof containing Confidential Information with the legend: "CONFIDENTIAL"
or "CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER."

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b.

In the case of interrogatory answers and responses to requests for admissions, if

appropriate, designation of Confidential Information shall be made by means of a
statement in the answers or responses specifying that the answers or responses or specific
parts thereof are designated "Confidential." The following legend shall be placed on each
page of interrogatory answers or responses to requests for admission containing
Confidential Information: "CONTAINS CONFIDENTIAL INFORMATION."
c.

In the case of depositions and the information contained in depositions (including

exhibits), designation of the portions of the transcript (including exhibits) which contain
Confidential Information shall be made by a statement to such effect on the record in the
course of the deposition by counsel for the party or witness providing such information,
or by letter from such counsel within thirty (30) days of receipt of the deposition
transcript or copy thereof (or written notification that the transcript is available). The
entire deposition transcript (including exhibits) shall be treated as Confidential under this
Order until the expiration of the above referenced thirty-day period for designation by
letter, except that the deponent may review the transcript of his or her own depositions
during this thirty-day period. After the expiration of the thirty (30) day period, the
following legend shall be conspicuously placed on the front and back of any original
deposition transcript, and on each copy thereof, which contains Confidential Information:
"CONTAINS CONFIDENTIAL INFORMATION."

If portions of a videotaped

deposition are designated as "Confidential", the videocassette or other videotape
container shall be labeled with the same legend provided in Paragraph 7(a) above.
d.

To the extent that matter stored or recorded in the form of electronic or magnetic

media (including information, files, databases, or programs stored on any digital or

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analog machine readable device, computers, discs, networks, or tapes) ("Computerized
Material") is produced by any party in such form, the Supplying Party may designate
such material as "Confidential" by cover letter referring generally to such matter or by
affixing to such media a label with the legend provided for in Paragraph 7(a) above.
Whenever any party to whom Computerized Material designated as "Confidential" is
produced reduces such material to hard-copy form, such party shall mark such hard-copy
form with the legend provided for in Paragraph 7(a) above.
e.

To the extent that any party or counsel for any party creates, develops, or

otherwise establishes on any digital, or analog machine-readable device, recording media,
computer, disc, network, tape, file, database, or program designated "Confidential," that
party and/or its counsel must take all necessary steps to ensure that access to such media
is properly restricted to those persons who, by terms of this Order, may have access to
Confidential Information, and will affix to any media containing such information a label
with the legend provided for in Paragraph 7(a) above.
f.

Whenever a party wishes to file any writing designated as confidential with the

Court, the party may either (1) redact any and all information contained on any page that
is marked "Confidential" before filing said document with the Court, (2) if the party
wishing to file said writing is the party that originally designated the document as
confidential that party may, at their discretion, redact only that information that it deems
confidential from any page that is marked "Confidential" before filing with the Court, or
(3) separately file the document under seal with the Court.
8.

Confidential Information shall not be used by any person, other than the

Supplying Party, for any purpose other than conducting this Proceeding, (Stearns v. Wal-Mart

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Stores, Inc.), which case is pending in the United States District Court for the District of
Nebraska, and in no event shall such information be used for any business, competitive, personal,
private, public or other purpose.
9.

The attorneys of record are responsible for employing reasonable measures,

consistent with this Order, to control access to, and distribution of information designated
"Confidential" pursuant to this Order.
10.

Except as otherwise ordered by the Court, access to information designated

"Confidential" shall be limited to the following persons:
a.

The parties, including outside and in-house counsel for the parties, as well as

members and employees of their firms including, but not limited to their paralegals,
investigative, secretarial, and clerical personnel who are employed by and engaged in
assisting such counsel in this Proceeding.
b.

Outside photocopying, data processing, or graphical production services

employed by the parties or their counsel to assist in this Proceeding.
c.

Any outside expert or consultant (or any employee of such outside expert or

consultant) who is retained, or sought to be retained, by counsel for a party in this
Proceeding, for purposes of consulting, and/or testifying in this Proceeding, and to whom
counsel in good faith has deemed disclosure of such "Confidential" material is reasonably
necessary in order to assist in the preparation or the conduct of this Proceeding. This
paragraph shall not relieve, change or otherwise affect any obligations or limitations
imposed on any person by contract or law regarding disclosure or use of trade secrets or
other confidential or propriety information.
d.

Any fact witness, at the witness' deposition in this Proceeding, but only if counsel

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who discloses "Confidential" information to the witness determines, in good faith, that
such disclosure is reasonably necessary and appropriate to assist in the conduct of this
Proceeding.
e.

This Court, or any other Court exercising jurisdiction with respect to this

litigation, Court personnel, jurors, and qualified persons (including necessary clerical
personnel) recording, taking or transcribing testimony or argument at any deposition,
hearing, trial or appeal of this litigation.
11.

Confidential Information shall not be disclosed to a person described in Paragraph

10(c) or (d) unless and until such person has executed an Agreement of Confidentiality in
substantially the form attached hereto as Exhibit A. The originals of an executed Agreement of
Confidentiality shall be maintained by counsel for the party who obtained it until the final
resolution of this litigation, and shall not be subject to discovery except upon motion or notice
and a showing of good cause. This prohibition includes either direct or indirect disclosure,
including but not limited to, any disclosure by counsel or experts. At any deposition and absent
the agreement of the parties, prior to the disclosure of any Confidential Information, the
deponent shall be provided a copy of the form attached hereto as Exhibit B and shall be asked to
affirmatively state on the record that he or she has received the form and consents to the
restrictions contained within the Protective Order, a copy of which shall be provided to the
deponent.
12.

The use, rules, and procedures governing the use of Confidential Information at

trial shall be determined by the Court at the final pretrial conference.
13.

A party may, at any time, make a good faith challenge to the propriety of a

Confidential Information designation, and/or to any party's redaction (in whole or in part) of any

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documents produced in discovery and/or filed with the Court. In the event any party objects to
the designation and/or redaction of any material under this Order, the objecting party shall
consult with the designating party to attempt to resolve their differences. If the parties are unable
to reach an accord as to the proper designation and/or redaction of the material, the objecting
party may apply to the Court for resolution. The Court will provide a prompt resolution to the
dispute.

Any documents designated as "Confidential" shall be treated as Confidential

information until such time as the Court rules otherwise.
14.

Nothing contained in this Order shall affect the right, if any, of any party or

witness to make any other type of objection, claim, or other response to discovery requests,
including, without limitation, interrogatories, requests for admission, requests for production of
documents or questions at a deposition. Nor shall this Order be construed as a waiver by any
party of any legally cognizable privileges to withhold any Confidential Information other than on
a basis that it has been designated Confidential, or of any right which any party may have to
assert such privilege at any stage of this litigation.
15.

If another Court or an administrative agency subpoenas or orders production of

stamped "Confidential" documents which a party has obtained under the terms of this Order,
such party shall promptly notify the designating party of the pending of such subpoena or order.
16.

Within sixty (60) business days after the final resolution of this litigation, all

Confidential Information shall be returned to counsel for the party or non-party that produced it,
or shall be destroyed. As to those materials that contain or reflect Confidential Information, but
that constitute or reflect counsel's work product, counsel of record for the parties, or non-parties,
shall be entitled to retain such work product in their files in accordance with the provisions of
this Order, so long as they are clearly marked to reflect that they contain information subject to

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this Order and may not be used in connection with any other proceeding or action.
17.

A Supplying Party that inadvertently fails to designate discovery material as

"Confidential" or mis-designates discovery material as "Confidential" pursuant to this Order at
the time of its production shall be entitled to make a correction to its designation within a
reasonable time of the discovery of the non- or mis-designation. Such correction and notice
thereof shall be made in writing accompanied by substitute copies of each item of discovery
material, appropriately designated. Those individuals who received the discovery material prior
to notice of non- or mis-designation by the Supplying Party shall within five (5) days of receipt
of substitute copies, take reasonable steps to destroy or return to the law firm representing
Supplying Party all copies of such mis-designated documents. The obligation to treat such
material pursuant to the corrected designation shall be prospective only, and those individuals
who reviewed the mis-designated discovery material prior to notice of the mis-designation by the
Supplying Party shall abide by the provisions of this Order with respect to all future use and
disclosure of any information contained in the mis-designated materials.
18.

The restrictions set forth in this Order shall not apply to documents or information

designated Confidential that are publicly available or that are obtained independently and under
rightful means by the Receiving Party, unless they became so due to a violation of this Order.
19.

A party's compliance with the terms of this Order shall not operate as an

admission that any particular document is not (1) confidential, (2) privileged, or (3) admissible in
evidence at trial.
20.

The parties shall attempt, subject to time constraints, to resolve disputes regarding

the scope and subject of subpoenas prior to issuing the subpoena. Each party issuing subpoenas
shall serve a copy of any subpoena on the opposing party at the same time such subpoena is

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issued and each party receiving documents pursuant to a subpoena shall provide to the other
party a complete copy of all documents received within five (5) working days of the receipt of
such documents.
21.

This Order shall apply to non-parties who provide discovery, by deposition,

production of documents or otherwise, in this litigation, if said non-party requests, in writing, the
protection of this Order as to said non-party's Confidential Information and complies with the
provisions of this Order.
22.

Upon final resolution of this litigation (including conclusion of any appeal), this

Order shall remain in effect and continue to be binding, unless expressly modified, superseded,
or terminated by consent of all parties or by Order of the Court. This Court expressly retains
jurisdiction over this action for enforcement of the provision of this Order following the final
resolution of this litigation.
23.

This Order shall not prevent any party from applying to the Court for relief

therefrom, or from applying to the Court for further or additional protective orders, or from
agreeing to modifications of this Order, subject to the approval of the Court.
24.

The Court may amend, modify, or dissolve this Protective Order at any time.

25.

Plaintiff’s counsel, Richard E. Fradette, is counsel for several other terminated

pharmacists against defendant Walmart alleging substantially the same claims as plaintiff herein.
Counsel gives NOTICE of his intent to petition the Court to share Confidential Information with
his co-counsel, experts and clients in the several other cases. The Confidential Information
would only be used in cases being prosecuted by Attorney Fradette against Walmart.
IT IS SO ORDERED.
DATED April 29, 2014.

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BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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