Jean Pool v. Walmart Inc.

1 Bron E. D’Angelo, Esq. (SBN 246819) Sean N. Costa, Esq. (SBN 347439) 2 BURGER | MEYER LLP 999 Corporate Drive, Suite 220 3 Ladera Ranch, CA 92694 Telephone: (949) 427-1888 4 Facsimile: (949) 427-1889 Email: bdangelo@burgermeyer.com 5 scosta@burgermeyer.com 6 Attorneys for Defendant WALMART INC. [9] 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA [12] 13 JEAN POOL, an individual, Case No: 2:23-cv-06584-SPG-MRW Judge Sherilyn Peace Garnett 14 Plaintiff, Crtrm: 5C 15 vs. STIPULATED PROTECTIVE 16 WALMART INC., a Delaware ORDER corporation; and DOES 1 to 50, 17 Inclusive, Action Filed: February 16, 2023 18 Defendant. [19] 20 1. PURPOSES AND LIMITATIONS 21 The following parties, JEAN POOL (“Plaintiff”) and WALMART INC. 22 (“Walmart”), by their undersigned counsel, have and hereby stipulate and agree to 23 entry of the following Stipulated Protective Order and to abide by the following 24 terms: 25 WHEREAS, the Parties have propounded or will propound certain discovery 26 requests and initial disclosures including information which either Party considers to 27 be proprietary, confidential business records and/or trade secrets, or sensitive 1 WHEREAS, the Parties have expressed a willingness to provide the 2 confidential documents and information which would be necessarily disclosed in 3 complying with these discovery requests and initial disclosures, provided that the 4 Court enter an appropriate protective order; and 5 WHEREAS, the Parties acknowledge that this Order does not confer blanket 6 protections on all disclosures or responses to discovery and that the protection it 7 affords from public disclosure and use extends only to the limited information or 8 items that are entitled to confidential treatment under the applicable legal principles; 9 and 10 WHEREAS, the Parties have agreed to this; 11 The following procedures shall govern the production, use and disposal of the 12 confidential information: 13 1.1 Good Cause Statement. This action is likely to involve trade secrets and 14 other valuable commercial, financial, technical, security, and/or proprietary 15 information for which special protection from public disclosure and from use for any 16 purpose other than prosecution of this action is warranted. Such confidential and 17 proprietary materials and information consist of, among other things, confidential 18 business information, information regarding confidential business practices, or other 19 commercial information (including information implicating privacy rights of third 20 parties), information generally unavailable to the public, or which may be privileged 21 or otherwise protected from disclosure under state or federal statutes, court rules, 22 case decisions, or common law. Accordingly, to expedite the flow of information, to 23 facilitate the prompt resolution of disputes over confidential discovery materials, to 24 adequately protect information the parties are entitled to keep confidential, to ensure 25 that the Parties are permitted reasonable necessary uses of such material in 26 preparation for and in the conduct of trial, to address their handling at the end of the 27 litigation, and serve the ends of justice, a protective order for such information is 1 designated as confidential for tactical reasons and that nothing be so designated 2 without good faith belief that it has been maintained in a confidential, non-public 3 manner, and there is good cause why it should not be part of the public records of 4 this case. 5 1.2 Acknowledgement of Procedure for Filing Under Seal. The Parties 6 further acknowledge, as set forth in Section 9.3, below, that this Stipulated Protective 7 Order does not entitle them to file confidential information under seal; Local Civil 8 Rule 79-5 sets forth the procedures that must be followed and the standards that will 9 be applied when a party seeks permission from the Court to file material under seal. 10 There is a strong presumption that the public has a right of access to judicial 11 proceedings and records in civil cases. In connection with non-dispositive motions, 12 good cause must be shown to support a filing under seal. See Kamakana v. City and 13 County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), Phillips v. Gen. Motors Corp., [14] 307 F.3d 1206 , 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electronics, Inc., [15] 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good 16 cause showing), and a specific showing of good cause or compelling reasons with 17 proper evidentiary support and legal justification, must be made with respect to 18 Protected Material that a party seeks to file under seal. The Parties’ mere designation 19 of Disclosure or Discovery Materials as CONFIDENTIAL does not—without 20 submission of competent evidence by declaration, establishing that the material 21 sought to be filed under seal qualifies as confidential, privileged, or otherwise 22 protectable—constitute good cause. 23 Further, if a party sealing related to a dispositive motion or trial, then 24 compelling reasons, not only good cause, for the sealing must be shown and the 25 relief sought shall be narrowly tailored to serve the specific interest to be protected. 26 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 27 each item or type of information, document, or thing sought to be filed or introduced 1 protection must articulate compelling reasons, supported by specific facts and legal 2 justification, for the requested sealing order. Again, competent evidence supporting 3 the application to file documents under seal must be provided by declaration. 4 Any document that is not confidential, privileged, or otherwise protectable in 5 its entirety will not be filed under seal if the confidential portions can be redacted. If 6 documents can be redacted, then a redacted version for public viewing, omitting only 7 the confidential, privileged, or otherwise protectable portions of the document, shall 8 be filed. Any application that seeks to file documents under seal in their entirety 9 should include an explanation of why redaction is not feasible. 10 2. SCOPE 11 The protections conferred by this Stipulation and Order cover not only 12 confidential material but also (1) any information copied or extracted form the 13 confidential material; (2) all copies, excerpts, summaries, or complications of the 14 confidential material, and (3) any testimony, conversations, or presentations by 15 Parties or their Counsels that might reveal the confidential material. 16 Any use of the confidential material at trial shall be governed by the orders of 17 the trial judge. This Order does not govern the use of the confidential material at 18 trial. 19 3. DURATION 20 Once a case proceeds to trial, information that was designated as 21 “confidential” or “produced pursuant to protective order” or in some similar fashion 22 any document for which it claims protection under this Order, becomes public and 23 will be presumptively available to all members of the public, including the press, 24 unless compelling reasons supported in advance of trial. See Kamakana, 447 F.3d at 25 1180-81 (distinguishing “good cause” showing for sealing documents produced in 26 discovery from “compelling reasons” standard when merits-related documents are 27 part of court record). Accordingly, the terms of this Protective Order do not extend 1 4. DESIGNATING PROTECTED MATERIAL 2 4.1 Designation of Confidential Documents and Information. The 3 Responding Party shall mark as “confidential” or “produced pursuant to protective 4 order” or in some similar fashion any document for which it claims protection under 5 this Order. If only a portion of the material on a page qualifies for protection, the 6 Responding Party also must clearly identify the protected portion(s) (e.g., by making 7 appropriate markings in the margins). The document, things and information 8 contained in them or gleaned from them shall only be used, shown and disclosed 9 only as provided in this Order. The term “confidential documents and information” 10 as used in this Order shall be construed to include the document and materials so 11 marked, and their content, substance and the information contained in or gleaned 12 form them. The term shall also be construed to include any summaries, quotes, 13 excerpts and/or paraphrases of the document, things or information. The designation 14 shall be made in good faith and shall not be made with respect to any documents 15 which are in the public domain, such as patents, or any other documents which has 16 previously been produced or disseminated without confidentiality protection. 17 Mass, indiscriminate or routinized designations are prohibited. Designations 18 that are shown to be clearly unjustified or that have been made for an improper 19 purpose (e.g. to unnecessarily encumber the case development process or to impose 20 unnecessary expenses and burdens on other parties) may expose the Designating 21 Party to sanctions. 22 If it comes to a Responding Party’s attention that information or items that it 23 designated for protection do not qualify for protection, that Responding Party must 24 promptly notify all other Parties that it is withdrawing the inapplicable designation. 25 4.2 Inadvertent Failures to Designate. If timely corrected, an inadvertent 26 failure to designate qualified information or items does not, standing alone, waive the 27 Responding Party’s right to secure protection under this Order for such material. 1 efforts to assure that the material is treated in accordance with the provisions of this 2 Order. 3 5. ACCESS TO AND USE OF PROTECTED MATERIAL 4 5.1 Access to Confidential Documents and Information by Qualified 5 Persons. This Protection Order is limited to the context of pre-trial civil discovery. 6 This Protective Order does not restrict disseminations of information if gained from 7 other public sources outside of pre-trial civil discovery. Accordingly, access to 8 confidential documents and other materials, any parts thereof, any summaries or 9 extracts thereof, as well as matters contained therein which are produced or obtained 10 exclusively through pre-trial discovery shall be limited to the following “qualified 11 persons.” The following persons are automatically deemed “qualified persons”: 12 a. This Court and its employees; 13 b. The jurors; 14 c. Counsel of record for the parties to this lawsuit; 15 d. Those paralegals, stenographic and clerical employees who are 16 employed by and assisting counsel of record; 17 e. The parties of record and their officers, directors, employees, 18 counsel of record and insures to the extent necessary to assist in 19 preparing for discovery, depositions, resolution, or for trial, who 20 are otherwise assisting in this litigation 21 f. Deposition witnesses; 22 g. Witnesses called at trial; 23 h. Any mediator who is assigned/chosen to hear this matter, and 24 his/her staff, subject to their agreement to maintain confidentiality 25 to the same degree as required by this stipulation; and 26 i. Any expert or consultant who has been retained or specially 27 employed by a party in anticipation of this litigation or for trial of 1 has signed a written certification in the form set as Exhibit “A”; 2 provided, however, that no confidential documents and 3 information shall be disseminated to any expert or consultant: 4 i. Who is an employee of a direct business competitor of the 5 party producing the information; or 6 ii. Who is employed by a direct business competitor of the 7 party producing the information and who directly 8 participates in design, manufacturing, marketing, or service 9 activities of direct business competitors. 10 Counsel of record shall maintain such certifications for all designated experts, 11 and shall provide copies of the certifications upon demand to counsel for any 12 opposing party. Demand to one counsel of record for a party is deemed to be a 13 demand to all counsel of record for a party. 14 5.2 Jurisdiction Over Qualified Persons. Each qualified person is subject to 15 the jurisdiction of this Court for purposes of enforcement of this Order. Counsel of 16 record are responsible for ensuring that their employees and any experts they retain 17 comply strictly with this Order. Violation by an employee of counsel or by an expert 18 retained by counsel shall be deemed a violation of counsel. 19 5.3 Use of Confidential Documents and Information Generally. 20 Confidential documents, things and information may be used solely in connection 21 with this lawsuit and for no other purpose. No qualified person who gains access to 22 the confidential documents, things and information may disclose them or their 23 contents to any other person without the written stipulation of the producing party or 24 by order of this Court. 25 5.4 Use of Confidential Documents and Information in this Lawsuit. 26 Confidential documents, things and information may be used at trial or at 27 depositions, in accordance with the following safeguards: if confidential documents, 1 depositions and exhibits thereto which refer to or relate to such confidential 2 documents, things or information shall themselves be considered as confidential 3 documents. The Responding Party will identify the disclosure or discovery material 4 on the record, before the close of the deposition of all protected testimony. The party 5 introducing such confidential portions of the transcript and exhibits separately and 6 labels them “confidential.” In addition, each deponent is ordered that he may not 7 divulge any confidential documents, things or information except to qualified 8 persons. 9 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 10 6.1 Challenges to Claims of Confidentiality. If a party contends that any 11 document, information or portion of them which another party or third party ahs 12 designated as confidential are not entitled to protection, they may file a motion to 13 change the designation. As per Stadish v. Superior Court (1999) 71 Cal.App.4th 14 1130 , the motion to change the designation shall provide notice and an opportunity 15 for the proponent of the confidentiality to respond. The burden is placed on the 16 proponent of confidentiality to demonstrate good cause. The document and 17 information shall remain confidential until their status is changed by stipulation or 18 order. 19 7. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 20 PRODUCED IN THIS LITIGATION 21 7.1 Non-Parties. The terms of this Order are applicable to information 22 produced by a Non-Party in this Action as designated as “confidential” or “produced 23 pursuant to protective order” or in some similar fashion any document for which it 24 claims protection under this Order. Such information produced by Non-Parties in 25 connection with this litigation is protected by the remedies and relief provided by this 26 Order. Nothing in these provisions should be construed as prohibiting a Non-Party 27 form seeking additional protections. 1 In the event that a Party is required, by a valid discovery request, to produce a 2 Non-Party’s confidential information in its possession, and the Party is subject to an 3 agreement with the Non-Party not to produce the Non-Party’s confidential 4 information, then the Party shall: 5 (a) promptly notify in writing the Required Party and the Non-Party 6 that some or all of the information requested is subject to a confidentiality agreement 7 with a Non-Party; 8 (b) promptly provide the Non-Party a copy of the Stipulated Protective 9 Order in this Action, the relevant discovery request(s), and a reasonably specific 10 description of the information requested; and 11 (c) make the information requested available for inspection by the Non12 Party, if requested. 13 If the Non-Party fails to seek a protective order from this Court within 14 days 14 of receiving the notice and accompanying information, the Receiving Party may 15 produce the Non-Party’s confidential information responsive to the discovery 16 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 17 not produce any information in its possession or control that is subject to the 18 confidentiality agreement with the Non-Party before a determination by the Court. 19 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 20 of seeking protection in this Court of its Protected Material. 21 8. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 22 PROTECTED MATERIAL 23 When a Responding Party gives notice to Receiving Parties that certain 24 inadvertently produced material is subject to a claim of privilege or otherwise 25 protection, the obligations of the Receiving Parties are set forth in Federal Rule of 26 Civil Procedure 16(b)(5)(B). This provision is not intended to modify whatever 27 procedure may be established in an e-discovery order that provides for production 1 insofar as the Parties reach an agreement on the effect of disclosure of a 2 communication or information covered by the attorney-client privilege or work 3 product protection, the Parties may incorporate their agreement in the Stipulated 4 Protective Order submitted to the Court. 5 9. MISCELLANEOUS 6 9.1 Right to Further Relief. Nothing in this Order abridges the rights of any 7 person to seek its modification by the Court in the future. 8 9.2 Right to Assert Other Objections. By stipulating to the entry of this 9 Protective Order, no Party waives any right it otherwise would have to object to 10 disclosing or producing any information or item on any ground not addressed in this 11 Stipulated Protective Order. Similarly, no Party waives any right to object on any 12 ground to use in evidence of any of the material covered by this Protective Order. 13 9.3 Filing and Sealing. A Party that seeks to file under seal any Protected 14 Material must comply with Local Rule 79-5. When a party files confidential 15 documents, things and information, including confidential portions or any transcript, 16 they shall file in sealed envelopes or other appropriately sealed containers on which 17 shall be endorsed with the title of this action and a statement substantially in the 18 following form: 19 Provisionally “Filed Under Seal Pursuant to Protective Order.” 20 The envelop or container shall not be opened or released to anyone other than 21 qualified persons without further order of the Court. 22 9.4 Amendments. Nothing in this Order will prejudice either party from 23 seeking amendments broadening or restricting the rights of access to and the use of 24 confidential documents or information, or contesting the designation of a confidential 25 document or qualified person. 26 /// 27 /// 1110. FINAL DISPOSITION 2 10.1 Disposal at the Conclusion of this Action. After the final disposition of 3 | this Action, within sixty (60) days of a written request by the Responding Party, each 4 | Receiving Party must return all confidential documents, things and information, and 5 | all copies thereof. Whether the documents, things and information is returned or 6 | destroyed, the Receiving Party must submit a written certification to the Producing 7 | Party (and, if not the same person or entity, to the Responding Party) by the 60 day 8 | deadline that (1) identifies (by category, where appropriate) all the confidential 9 | material that was returned or destroyed and (2) affirms that the Receiving Party has 10 | not retained any copies, abstracts, compilations, summaries or any other format 11 | reproducing or capturing any of the confidential material. Notwithstanding this 12 | provision, Counsel are entitled to retain any archival copy of all pleadings, motion 13 | papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 14 | deposition and trial exhibits, expert reports, attorney work product, and consultant 15 | and expert work product, even if such material contain confidential material. Any 16 | such archival copies that contain or constitute confidential material remain subject to 17 | this Protective Order as set forth in Section 3 (DURATION) 18 10.2 Execution. Facesimile copies of signature pages may be used as 19 | originals and this Stipulated Protective Order may be executed in counterparts with 20 | the same full force and effect. This Stipulation and Protective Order consists of 13 21 | pages, inclusive of a single-page exhibit, and is executed on the date set below. [22] 23 | Dated: September 13, 2023 THE BARNES FIRM, LC 24 □□□ A. DShachan 25 Attomeys for Plainutt JEAN POOL [28] $e ORDER OOS 1 | Dated: September 13, 2023 BURGER | MEYER!” 2 /s/ Sean N. Costa 3 Bron E. D’ Angelo, Esq. Sean N. Costa, Esq. 4 Attorneys for Defendant WALMART, INC. [4] Dated: 09/14/2023 8 Michael R. Wriner 9 United States Magistrate Judge [10] 1] [28] -12STIPULATED PROTECTIVE ORDER 1 JEAN POEOXLH vI. BWITA L“AM”A RT INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF 2 CALIFORNIA CASE NO. 2:23-cv-06584-SPG-MRW 3 I, , [print or type name] am employed by 4 I am: 5 a. A party to this action. 6 b. Counsel for . 7 c. Employed by . 8 d. I have been retained by counsel for . 9 My present occupation or job description is: [12] 13 I hereby acknowledge that I have received and read a copy of the Protective 14 Order entered in this action in the United States District Court Central District of 15 California, Case No. 2:23-cv-06584-SPG-MRW, and I understand the limitations this 16 Protective Order imposes upon the use, disclosure, and the eventual return and/or 17 destruction of information designated as “confidential litigation materials.” I further 18 understand that any unauthorized use and disclosure of any confidential litigation 19 materials shall constitute contempt of Court, and I hereby consent to the personal 20 jurisdiction of the United States Central District of California in connection with any 21 use or disclosure of confidential litigation materials. I agree to be bound by all terms 22 of such Protective Order.