Beller v. Wal-Mart Stores East, LP et al
Filing
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STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Chelsey M. Vascura on 1/18/2018. (kpt)
IN THE UNITED STATES DISCTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CRAIG BELLER,
Plaintiff,
v.
WAL-MART TRANSPORTATION,
LLC AND WAL-MART STORES EAST,
LP,
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Case No. 2:17-cv-00530
Judge James L. Graham
Magistrate Judge Chelsey M. Vascura
Defendants.
STIPULATED PROTECTIVE ORDER
The parties to this action, Plaintiff Craig Beller (“Plaintiff”) and Defendants Wal-Mart
Transportation, LLC and Wal-Mart Stores East, L.P. (“Walmart” or “Defendants”) 1 , by and
through their respective counsel, hereby stipulate and request that the Court enter a mutual
protective order pursuant to Fed. R. Civ. P. 26(c) as follows:
WHEREAS, the parties in the above-captioned matter believe these proceedings may
involve the discovery and use of confidential, non-public, sensitive, or proprietary business,
employment, tax, social security, financial, and personally identifiable information, documents
and other materials;
WHEREAS, the parties have agreed to produce such documents only on the agreement
that such “Confidential Information” including information regarding current and former
Walmart employees’ social security information, dates of birth, personal banking information,
medical information, and records stating the actual rates of pay at Walmart, and corporate trade
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Plaintiff incorrectly identifies Wal-Mart Transportation, LLC as a Defendant in this action. Wal-Mart
Stores East, LP, which is the operating entity for the location where Plaintiff worked, is the correct entity.
secrets, nonpublic research and development data, pricing formulas, prospective inventory
management programs, confidential business information not generally known to the general
public, and customer-related information, will be disclosed only as provided herein;
WHEREAS, the parties have agreed to stipulate to protect certain confidential and
otherwise protected documents, data (including electronically stored information) and other
information, including without limitation, metadata (collectively, “Documents”), against claims
of waiver and inadvertent production in the event they are produced during this litigation
whether pursuant to a Court Order, a party’s discovery request, or informal production.
WHEREAS, the parties may be required to produce large volumes of Documents, the
parties wish to comply with discovery deadlines and complete discovery as expeditiously as
possible, while preserving and without waiving any evidentiary protections or privileges
applicable to the information contained in the Documents produced, including as against third
parties and other proceedings, and in addition to their agreement, need the additional protections
of a Court Order under Federal Rules of Evidence 502 (d) and (e) to do so.
WHEREAS, to comply with applicable discovery deadlines, a party may be required to
produce certain categories of Documents that have been subject to minimal or no attorney review
(the “Disclosures”). This Stipulated Protective Order is designed to foreclose any arguments that
by making such Disclosures, the disclosure or production of Documents subject to a legally
recognized claim of privilege, including without limitation the attorney-client privilege, workproduct doctrine, or other applicable privilege:
(a) was not inadvertent by the Producing Party;
(b) that the Producing Party did not take reasonable steps to prevent the
disclosure of privileged Documents;
(c) that the Producing Party did not take reasonable or timely steps to
rectify such Disclosure; and/or
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(d) that such Disclosure acts as a waiver of applicable privileges or
protections associated with such Documents.
WHEREAS, because the purpose of this Stipulated Protective Order is to protect and
preserve Confidential Information and privileged Documents, the parties agree they are bound as
follows from and after the date their counsel have signed it, even if such execution occurs prior
to Court approval.
THEREFORE, the parties seek the entry of an Order, pursuant to Federal Rule of Civil
Procedure 26(c) governing the disclosure of documents and information therein pertaining to
“Confidential Information” on the terms set forth herein, as well as an Order governing the return
of inadvertently produced documents and data and affording them the protections of Federal
Rules of Evidence 502 (d) and (e), on the terms set forth herein.
IT IS HEREBY STIPULATED AND AGREED THAT:
1.
The Protective Order shall be entered pursuant to the Federal Rules of Civil
Procedure and Federal Rules of Evidence 502 (d) and (e).
2.
The Protective Order shall govern all materials deemed to be “Confidential
Information.” Such Confidential Information shall include the following:
(a) Any and all documents referring or related to confidential and
proprietary human resources or business information; financial records
of the parties; compensation of Defendants’ current or former
personnel; policies, procedures or training materials of Defendants; or
Defendants’ organizational structure;
(b) Any documents from the personnel, medical or workers’ compensation
file of any current or former employee or contractor;
(c) Any documents relating to the medical or health information of any of
Defendants’ current or former employees or contractors;
(d) Any documents containing corporate trade secrets, nonpublic research
and development data, pricing formulas, prospective inventory
management programs, confidential business information not generally
known to the general public, and customer-related information;
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(e) Any portions of depositions (audio or video) where Confidential
Information is disclosed or used as exhibits.
3.
In the case of documents and the information contained therein, designation of
Confidential Information produced shall be made by placing the following legend on the face of
the document and each page so designated “CONFIDENTIAL” or otherwise expressly identified
as confidential. Defendants will use best efforts to limit the number of documents designated
Confidential.
4.
Except as required by law or executive order, Confidential Information shall be
held in confidence by each qualified recipient to whom it is disclosed, shall be used only for
purposes of this action, shall not be used for any business purpose, and shall not be disclosed to
any person who is not a qualified recipient. All produced Confidential Information shall be
carefully maintained so as to preclude access by persons who are not qualified recipients.
5.
Qualified recipients shall include only the following:
(a) In-house counsel and law firms for each party and the secretarial,
clerical and paralegal staff of each;
(b) Deposition notaries and staff;
(c) Persons other than legal counsel who have been retained or specially
employed by a party as an expert witness for purposes of this lawsuit or
to perform investigative work or fact research;
(d) Deponents during the course of their depositions or potential witnesses
of this action; and
(e) The parties to this litigation, their officers, and professional employees.
6.
Each counsel shall be responsible for providing notice of the Protective Order and
the terms therein to persons to whom they disclose “Confidential Information,” as defined by the
terms of the Protective Order.
Persons to whom Confidential Information is shown shall be informed of the terms of this
Order and advised that its breach may be punished or sanctioned as contempt of the Court. Such
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deponents may be shown Confidential Information during their deposition but shall not be
permitted to keep copies of said Confidential Information nor any portion of the deposition
transcript reflecting the Confidential Information.
If either party objects to the claims that information should be deemed Confidential, that
party’s counsel shall inform opposing counsel in writing within thirty (30) days of receipt of the
Confidential Information that the information should not be so deemed, and the parties shall
attempt first to dispose of such disputes in good faith and on an informal basis. If the parties are
unable to resolve their dispute, they may present a motion to the Court objecting to such status.
The information shall continue to have Confidential status during the pendency of any such
motion.
7.
No copies of Confidential Information shall be made except by or on behalf of
attorneys of record, in-house counsel or the parties in this action. Any person making copies of
such information shall maintain all copies within their possession or the possession of those
entitled to access to such information under the Protective Order.
8.
All information produced in this action, whether deemed Confidential or not, shall
be used only for purposes of this litigation and not for any other purpose.
9.
Whenever a party wishes to file any writing designated as Confidential with the
Court, the party may either (a) redact any and all information contained on any page that is
marked Confidential before filing said document with the Court, (b) 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 (c) separately file the document under seal
with the Court. If a party wishes to file a document that has been marked Confidential with the
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Court, the party will follow all rules and practices followed by the Court regarding filing a
document under seal, including filing a motion establishing good cause for the document to be
preserved under seal if necessary, prior to so filing.
10.
The termination of this action shall not relieve the parties and persons obligated
hereunder from their responsibility to maintain the confidentiality of information designated
Confidential pursuant to this Order.
11.
Upon termination of this action by entry of a final judgment (inclusive of any
appeals or petitions for review), the parties may request the return of all previously furnished
Confidential Information, including any copies thereof, and each person or party to whom such
Confidential Information has been furnished or produced shall be obligated to return it within
thirty (30) days of said request.
12.
Pursuant to Federal Rules of Evidence 502 (d) and (e), the parties agree to and the
Court orders protection of privileged and otherwise protected Documents against claims of
waiver (including as against third parties and in other federal and state proceedings) as follows:
(a) The disclosure or production of Documents by a Producing Party
subject to a legally recognized claim of privilege, including without
limitation the attorney-client privilege and the work-product doctrine,
to a Receiving Party, shall in no way constitute the voluntary disclosure
of such Document.
(b) The inadvertent disclosure or production of any Document in this
action shall not result in the waiver of any privilege, evidentiary
protection or other protection associated with such Document as to the
Receiving Party or any third parties, and shall not result in any waiver,
including subject matter waiver, of any kind.
(c) If, during this litigation, a party determines that any Document
produced by another party is or may reasonably be subject to a legally
recognizable privilege or evidentiary protection (“Protected
Document”):
(i)
the Receiving Party shall: (A) refrain from reading the
Protected Document any more closely than is necessary to
ascertain that it is privileged or otherwise protected from
disclosure; (B) immediately notify the Producing Party in
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writing that it has discovered Documents believed to be
privileged or protected; (C) specifically identify the Protected
Documents by Bates number range or hash value, and, (D)
within ten (10) days of discovery by the Receiving Party,
return, sequester, or destroy all copies of such Protected
Documents, along with any notes, abstracts or compilations of
the content thereof. To the extent that a Protected Document
has been loaded into a litigation review database under the
control of the Receiving Party, the Receiving Party shall have
all electronic copies of the Protected Document extracted from
the database. Where such Protected Documents cannot be
destroyed or separated, they shall not be reviewed, disclosed,
or otherwise used by the Receiving Party. Notwithstanding,
the Receiving Party is under no obligation to search or review
the Producing Party’s Documents to identify potentially
privileged or work product Protected Documents.
(ii)
If the Producing Party intends to assert a claim of privilege or
other protection over Documents identified by the Receiving
Party as Protected Documents, the Producing Party will,
within ten (10) days of receiving the Receiving Party’s written
notification described above, inform the Receiving Party of
such intention in writing and shall provide the Receiving Party
with a log for such Protected Documents that is consistent
with the requirements of the Federal Rules of Civil Procedure,
setting forth the basis for the claim of privilege or other
protection. In the event that any portion of a Protected
Document does not contain privileged or protected
information, the Producing Party shall also provide to the
Receiving Party a redacted copy of the document that omits
the information that the Producing Party believes is subject to
a claim of privilege or other protection.
(d) If, during this litigation, a party determines it has produced a Protected
Document:
(i)
the Producing Party may notify the Receiving Party of such
inadvertent production in writing, and demand the return of
such documents. Such notice shall be in writing, however, it
may be delivered orally on the record at a deposition,
promptly followed up in writing. The Producing Party’s
written notice will identify the Protected Document
inadvertently produced by bates number range or hash value,
the privilege or protection claimed, and the basis for the
assertion of the privilege and shall provide the Receiving Party
with a log for such Protected Documents that is consistent
with the requirements of the Federal Rules of Civil Procedure,
setting forth the basis for the claim of privilege or other
protection. In the event that any portion of the Protected
Document does not contain privileged or protected
information, the Producing Party shall also provide to the
Receiving Party a redacted copy of the Document that omits
the information that the Producing Party believes is subject to
a claim of privilege or other protection.
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(ii)
The Receiving Party must, within ten (10) days of receiving
the Producing Party’s written notification described above,
return, sequester, or destroy the Protected Document and any
copies, along with any notes, abstracts or compilations of the
content thereof. To the extent that a Protected Document has
been loaded into a litigation review database under the control
of the Receiving Party, the Receiving Party shall have all
electronic copies of the Protected Document extracted from
the database.
(e) To the extent that the information contained in a Protected Document
has already been used in or described in other documents generated or
maintained by the Receiving Party prior to the date of receipt of written
notice by the Producing Party as set forth in paragraphs (c)(ii) and
(d)(i), then the Receiving Party shall sequester such documents until the
claim has been resolved. If the Receiving Party disclosed the Protected
Document before being notified of its inadvertent production, it must
take reasonable steps to retrieve it.
(f) The Receiving Party’s return, sequestering or destruction of Protected
Documents as provided herein will not act as a waiver of the
Requesting Party’s right to move for the production of the returned,
sequestered or destroyed documents on the grounds that the documents
are not, in fact, subject to a viable claim of privilege or protection.
However, the Receiving Party is prohibited and estopped from arguing
that:
(i)
the disclosure or production of the Protected Documents acts
as a waiver of an applicable privilege or evidentiary
protection;
(ii)
the disclosure of the Protected Documents was not
inadvertent;
(iii)
the Producing Party did not take reasonable steps to prevent
the disclosure of the Protected Documents; or
(iv)
the Producing Party failed to take reasonable or timely steps to
rectify the error.
(g) Either party may submit Protected Documents to the Court under seal
for a determination of the claim of privilege or other protection. The
Producing Party shall preserve the Protected Documents until such
claim is resolved. The Receiving Party may not use the Protected
Documents for any purpose absent this Court’s Order.
(h) Upon a determination by the Court that the Protected Documents are
protected by the applicable privilege or evidentiary protection, and if
the Protected Documents have been sequestered rather than returned or
destroyed by the Receiving Party, the Protected Documents shall be
returned or destroyed within 10 (ten) days of the Court’s order. The
Court may also order the identification by the Receiving Party of
Protected Documents by search terms or other means.
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(i) Nothing contained herein is intended to, or shall serve to limit a
party’s right to conduct a review of documents, data (including
electronically stored information) and other information, including
without limitation, metadata, for relevance, responsiveness or the
segregation of privileged or protected information before such
information is produced to another party.
(j) By operation of the parties’ agreement and Court Order, the parties
are specifically afforded the protections of FRE 502 (d) and (e).
13.
Subject to the Federal Rules of Evidence, a stamped Confidential document and
other Confidential Information may be offered in evidence at trial or any court hearing, provided
that the proponent of the evidence gives five days’ advance notice to counsel for the party or
other person that designated the information as Confidential. Any party may move the court for
an order that the evidence be received in camera or under other conditions to prevent
unnecessary disclosure. The court will then determine whether the proffered evidence should
continue to be treated as Confidential Information and, if so, what protection, if any, may be
afforded to such information at the trial.
14.
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 party or other person who designated the document as
Confidential of the pendency of such subpoena or order.
15.
The Protective Order shall likewise govern all materials deemed “Attorneys’ Eyes
Only”, which materials shall include the following:
Any documents containing corporate trade secrets, nonpublic research and
development data, pricing formulas, prospective inventory management
programs, confidential business information not generally known to the general
public, and customer-related information. Qualified recipients of documents
marked “ATTORNEYS’ EYES ONLY” shall include only the following: Inhouse counsel and law firms for each party and the secretarial, clerical and
paralegal staff of each.
16.
Nothing in this Order shall be construed as an admission as to the relevance,
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authenticity, foundation or admissibility of any document, material, transcript, or other
information.
17.
Nothing in the Protective Order shall be deemed to preclude any party from
seeking and obtaining, on an appropriate showing, a modification of this Order.
18.
Once executed by all parties, the Protective Order shall be by treated by the
parties as an Order of Court until it is formally approved by the Court.
Respectfully submitted this 17th day of January, 2018.
/s/ Jennifer L. Arnold (w/permission via email
on 1.15.18)
/s/ Benjamin W. Mounts
Robert J. Tscholl (#0028532)
Jennifer L. Arnold (#0070848)
Attorneys for Plaintiff
400 South Main Street
North Canton, OH 44720
Telephone: 330.497.8614
Facsimile: 330.497.8613
Email:
btscholl740@yahoo.com
jlamesq@earthlink.net
Alison M. Day, Trial Attorney (#0068060)
Benjamin W. Mounts (#0096244)
LITTLER MENDELSON, P.C.
21 East State Street, 16th Floor
Columbus, OH 43215
Telephone:
614.463.4212
Facsimile:
614.221.3301
Email:
aday@littler.com
bmounts@littler.com
Attorneys for Plaintiff
Attorneys for Defendants
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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