Colon-Feliciano v. Wal-Mart Stores, Inc.

Filing 17

ORDER Granting 16 Stipulated Protective Order. Signed by Magistrate Judge George Foley, Jr. on 01/25/2017. (Copies have been distributed pursuant to the NEF - NEV)

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Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 1 of 14 1 2 3 4 5 6 7 8 9 10 11 Charles Abbott (SBN 13811) LAW OFFICES OF CHARLES ABBOTT, PC 21250 Hawthorne Blvd., Suite 500 Torrance, CA 90503 (310) 792-8665 (310) 792-7045 (fax) cabbott@cabbottlaw.com Ronald H. Reynolds, Esq. REYNOLDS & ASSOCIATES Nevada Bar No. 827 823 Las Vegas Blvd. So., Suite 280 Las Vegas, NV 89101 (702) 445-7000 (702) 385-7743 (fax) ron@reynoldslawyers.com Attorneys for Defendant, Wal-Mart Stores, Inc. UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 CONCEPCION COLON-FELICIANO, Plaintiff, 15 v. 16 17 19 21 STIPULATED PROTECTIVE ORDER WAL-MART STORES, INC.; DOES I through X, and ROE BUSINESS ENTITIES I through X, inclusive, Defendants. 18 20 Case No. 2:16-02370-JAD-GWF 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 22 confidential, proprietary, or private information for which special protection from public disclosure 23 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 24 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 25 Order. The parties acknowledge that this Order does not confer blanket protections on all 26 disclosures or responses to discovery and that the protection it affords from public disclosure and 27 use extends only to the limited information or items that are entitled to confidential treatment 28 under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 2 of 14 1 below, that this Stipulated Protective Order does not entitle them to file confidential information 2 under seal; Local Rule IA 10-5 sets forth the procedures that must be followed and the standards 3 that will be applied when a party seeks permission from the court to file material under seal. 4 2. 5 6 7 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 8 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 9 Civil Procedure 26(c). 10 11 12 13 14 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.5 Disclosure or Discovery Material: all items or information, regardless of the 15 medium or manner in which it is generated, stored, or maintained (including, among other things, 16 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 17 responses to discovery in this matter. 18 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 19 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 20 consultant in this action. 21 22 23 24 25 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 26 action but are retained to represent or advise a party to this action and have appeared in this action 27 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 28 2.10 Party: any party to this action, including all of its officers, directors, employees, 2 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 3 of 14 1 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.11 2 3 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.12 4 Professional Vendors: persons or entities that provide litigation support services 5 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 6 storing, or retrieving data in any form or medium) and their employees and subcontractors. 2.13 7 8 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.14 9 Receiving Party: a Party that receives Disclosure or Discovery Material from a 10 Producing Party. 11 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material 12 13 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all 14 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 15 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 16 However, the protections conferred by this Stipulation and Order do not cover the following 17 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 18 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 19 publication not involving a violation of this Order, including becoming part of the public record 20 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 21 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 22 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 23 Protected Material at trial shall be governed by a separate agreement or order. 24 4. 25 DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 26 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 27 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 28 3 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 4 of 14 1 defenses in this action, with or without prejudice; and (2) final judgment herein after the 2 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 3 including the time limits for filing any motions or applications for extension of time pursuant to 4 applicable law. 5 5. 6 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 7 Non-Party that designates information or items for protection under this Order must take care to 8 limit any such designation to specific material that qualifies under the appropriate standards. The 9 Designating Party must designate for protection only those parts of material, documents, items, or 10 oral or written communications that qualify – so that other portions of the material, documents, 11 items, or communications for which protection is not warranted are not swept unjustifiably within 12 the ambit of this Order. 13 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 14 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 15 unnecessarily encumber or retard the case development process or to impose unnecessary expenses 16 and burdens on other parties) expose the Designating Party to sanctions. 17 If it comes to a Designating Party’s attention that information or items that it designated for 18 protection do not qualify for protection, that Designating Party must promptly notify all other 19 Parties that it is withdrawing the mistaken designation. 20 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 21 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 22 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 23 designated before the material is disclosed or produced. 24 25 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but 26 excluding transcripts of depositions or other pretrial or trial proceedings), that the 27 Producing Party affix the legend “CONFIDENTIAL” to each page that contains protected 28 material. If only a portion or portions of the material on a page qualifies for protection, the 4 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 5 of 14 1 Producing Party also must clearly identify the protected portion(s) (e.g., by making 2 appropriate markings in the margins). 3 A Party or Non-Party that makes original documents or materials available for inspection 4 need not designate them for protection until after the inspecting Party has indicated which material 5 it would like copied and produced. During the inspection and before the designation, all of the 6 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 7 Party has identified the documents it wants copied and produced, the Producing Party must 8 determine which documents, or portions thereof, qualify for protection under this Order. Then, 9 before producing the specified documents, the Producing Party must affix the 10 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or 11 portions of the material on a page qualifies for protection, the Producing Party also must clearly 12 identify the protected portion(s) (e.g., by making appropriate markings in the margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, that 13 14 the Designating Party identify on the record, before the close of the deposition, hearing, or 15 other proceeding, all protected testimony. (c) for information produced in some form other than documentary and for any 16 17 other tangible items, that the Producing Party affix in a prominent place on the exterior of 18 the container or containers in which the information or item is stored the legend 19 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant 20 protection, the Producing Party, to the extent practicable, shall identify the protected 21 portion(s). 22 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 23 designate qualified information or items does not, standing alone, waive the Designating Party’s 24 right to secure protection under this Order for such material. Upon timely correction of a 25 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 26 in accordance with the provisions of this Order. 27 6. 28 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 5 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 6 of 14 1 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 2 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 3 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 4 challenge a confidentiality designation by electing not to mount a challenge promptly after the 5 original designation is disclosed. 6 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 7 process by providing written notice of each designation it is challenging and describing the basis for 8 each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice 9 must recite that the challenge to confidentiality is being made in accordance with this specific 10 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith 11 and must begin the process by conferring directly (in voice to voice dialogue; other forms of 12 communication are not sufficient) within 14 days of the date of service of notice. In conferring, the 13 Challenging Party must explain the basis for its belief that the confidentiality designation was not 14 proper and must give the Designating Party an opportunity to review the designated material, to 15 reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the 16 chosen designation. A Challenging Party may proceed to the next stage of the challenge process 17 only if it has engaged in this meet and confer process first or establishes that the Designating Party 18 is unwilling to participate in the meet and confer process in a timely manner. 19 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 20 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 21 Local Rule IA 10-1 (and in compliance with Local Rule IA 10-5, if applicable) within 21 days of the 22 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process 23 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 24 competent declaration affirming that the movant has complied with the meet and confer 25 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a 26 motion including the required declaration within 21 days (or 14 days, if applicable) shall 27 automatically waive the confidentiality designation for each challenged designation. In addition, the 28 Challenging Party may file a motion challenging a confidentiality designation at any time if there is 6 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 7 of 14 1 good cause for doing so, including a challenge to the designation of a deposition transcript or any 2 portions thereof. Any motion brought pursuant to this provision must be accompanied by a 3 competent declaration affirming that the movant has complied with the meet and confer 4 requirements imposed by the preceding paragraph. 5 The burden of persuasion in any such challenge proceeding shall be on the Designating 6 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 7 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 8 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 9 retain confidentiality as described above, all parties shall continue to afford the material in question 10 the level of protection to which it is entitled under the Producing Party’s designation until the court 11 rules on the challenge. 12 7. 13 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 14 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 15 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 16 the categories of persons and under the conditions described in this Order. When the litigation has 17 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 18 DISPOSITION). 19 20 21 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 22 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 23 information or item designated “CONFIDENTIAL” only to: 24 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 25 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose 26 the information for this litigation and who have signed the “Acknowledgment and 27 Agreement to Be Bound” that is attached hereto as Exhibit A; 28 (b) the officers, directors, and employees (including House Counsel) of the 7 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 8 of 14 1 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 2 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 3 4 reasonably necessary for this litigation and who have signed the “Acknowledgment and 5 Agreement to Be Bound” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, 8 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and 9 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (f) during their depositions, witnesses in the action to whom disclosure is 11 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be 12 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the 13 court. Pages of transcribed deposition testimony or exhibits to depositions that reveal 14 Protected Material must be separately bound by the court reporter and may not be disclosed 15 to anyone except as permitted under this Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian 16 or other person who otherwise possessed or knew the information. 17 18 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 19 LITIGATION 20 If a Party is served with a subpoena or a court order issued in other litigation that compels 21 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 22 must: 23 24 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 25 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 26 other litigation that some or all of the material covered by the subpoena or order is subject to this 27 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 28 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 8 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 9 of 14 1 Designating Party whose Protected Material may be affected. 2 If the Designating Party timely seeks a protective order, the Party served with the subpoena 3 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 4 before a determination by the court from which the subpoena or order issued, unless the Party has 5 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 6 expense of seeking protection in that court of its confidential material – and nothing in these 7 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 8 disobey a lawful directive from another court. 9 9. 10 11 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non-Party in 12 this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 13 connection with this litigation is protected by the remedies and relief provided by this Order. 14 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 15 protections. 16 (b) In the event that a Party is required, by a valid discovery request, to produce a Non 17 Party’s confidential information in its possession, and the Party is subject to an agreement with the 18 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party that 19 20 some or all of the information requested is subject to a confidentiality agreement 21 with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated Protective 22 23 Order in this litigation, the relevant discovery request(s), and a reasonably specific 24 description of the information requested; and (3) make the information requested available for inspection by the Non- 25 26 Party. 27 (c) If the Non-Party fails to object or seek a protective order from this court within 14 28 days of receiving the notice and accompanying information, the Receiving Party may produce the 9 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 10 of 14 1 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 2 seeks a protective order, the Receiving Party shall not produce any information in its possession or 3 control that is subject to the confidentiality agreement with the Non-Party before a determination 4 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense 5 of seeking protection in this court of its Protected Material. 6 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 7 8 Material to any person or in any circumstance not authorized under this Stipulated Protective 9 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 10 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 11 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 12 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 13 Agreement to Be Bound” that is attached hereto as Exhibit A. 14 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 15 MATERIAL 16 When a Producing Party gives notice to Receiving Parties that certain inadvertently 17 produced material is subject to a claim of privilege or other protection, the obligations of the 18 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 19 is not intended to modify whatever procedure may be established in an e-discovery order that 20 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 21 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 22 communication or information covered by the attorney-client privilege or work product protection, 23 the parties may incorporate their agreement in the stipulated protective order submitted to the 24 court. 25 12. 26 27 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 28 10 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 11 of 14 12.2 1 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 2 no Party waives any right it otherwise would have to object to disclosing or producing any 3 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 4 Party waives any right to object on any ground to use in evidence of any of the material covered by 5 this Protective Order. 12.3 6 Filing Protected Material. Without written permission from the Designating Party or 7 a court order secured after appropriate notice to all interested persons, a Party may not file in the 8 public record in this action any Protected Material. A Party that seeks to file under seal any 9 Protected Material must comply with Local Rule IA 10-5. Protected Material may only be filed 10 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 11 issue. Pursuant to Local Rule IA 10-5 a sealing order will issue only upon a request establishing that 12 the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 13 protection under the law. If a Receiving Party's request to file Protected Material under seal 14 pursuant to Local Rule IA 10-5(a) is denied by the court, then the Receiving Party may file the 15 information in the public record, unless otherwise instructed by the court. 16 13. 17 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 18 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 19 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 21 the Protected Material is returned or destroyed, the Receiving Party must submit a written 22 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 23 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 24 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 25 abstracts, compilations, summaries or any other format reproducing or capturing any of the 26 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy 27 of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 28 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 11 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 12 of 14 Case 2:16-cv-02370-JAD-GWF Document 16 Filed 01/24/17 Page 13 of 14 1 consultant and expert work product, even if such materials contain Protected Material. Any such 2 archival copies that contain or constitute Protected Material remain subject to this Protective Order 3 as set forth in Section 4 shall be destroyed after seven years. 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 6 DATED: ________________________ 7 _____________________________________ Attorneys for Plaintiff 8 9 10 January 24, 2017 DATED: ________________________ _________________________________ _________________ 11 12 13 14 15 16 17 18 ____ Attorneys for Defendant PURSUANT TO STIPULATION, IT IS SO ORDERED. January 25, 2017 DATED: ________________________ _________________________________ _______________________ __ __ _ _ _ _____ ___ ____ UNITED STATES MAGISTRATE JUDGE United States District/Magistrate Judge 19 20 21 22 23 24 25 26 27 28 12

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