Patricia Gage v. Walmart Inc. ( 2024 )

1 Daniel F. Fears, Bar No. 110573 dff@paynefears.com 2 Andrew K. Haeffele, Bar No. 258992 akh@paynefears.com 3 Bree A. Oswald, Bar No. 314614 bao@paynefears.com 4 PAYNE & FEARS LLP Attorneys at Law 5 4 Park Plaza, Suite 1100 Irvine, California 92614 6 Telephone: (949) 851-1100 Facsimile: (949) 851-1212 7 Attorneys for Walmart Inc. 8 ILG Legal Office, P .C. 9 Stephen Noel Ilg (SBN 275599) silg@ilglegal.com 10 Sydney Wilberton (SBN 345803) swilberton@ilglegal.com 11 Nicolas Jupillat (SBN 335559) njupillat@ilglegal.com 12 156 South Spruce Avenue, Ste 206A South San Francisco, CA 94080 13 Tel: (415) 580-2574 Fax: (415) 735-3454 14 Attorneys for Plaintiff Patricia Gage 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DISTRICT 17 18 Patricia Gage, on behalf of herself, Case No. 2:24-cv-00921-SVW-AJR 19 Assigned to Judge Stephen V. Wilson Plaintiff, 20 v. [PROPOSED] STIPULATED 21 PROTECTIVE ORDER Walmart Inc., a Delaware corporation, 22 and DOES 1 through 100, inclusive, 23 Defendant. Action Filed: January 2, 2024 Trial Date: None Set 24 25 26 1. GENERAL 27 1.1 Purposes and Limitations. Discovery in this action is likely to involve 1 protection from public disclosure and from use for any purpose other than prosecuting 2 this litigation may be warranted. Accordingly, the parties hereby stipulate to and 3 petition the Court to enter the following Stipulated Protective Order. The parties 4 acknowledge that this Order does not confer blanket protections on all disclosures or 5 responses to discovery and that the protection it affords from public disclosure and 6 use extends only to the limited information or items that are entitled to confidential 7 treatment under the applicable legal principles. The parties further acknowledge, as 8 set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle 9 them to file confidential information under seal; Civil Local Rule 79-5 sets forth the 10 procedures that must be followed and the standards that will be applied when a party 11 seeks permission from the court to file material under seal. 12 1.2 Good Cause Statement. 13 This action is likely to involve trade secrets, customer and pricing lists 14 and other valuable research, development, commercial, financial, technical and/or 15 proprietary information for which special protection from public disclosure and 16 from use for any purpose other than prosecution of this action is warranted. Such 17 confidential and proprietary materials and information consist of, among other 18 things, confidential business or financial information, information regarding 19 confidential business practices, or other confidential research, development, or 20 commercial information (including information implicating privacy rights of third 21 parties), information otherwise generally unavailable to the public, or which may be 22 privileged or otherwise protected from disclosure under state or federal statutes, 23 court rules, case decisions, or common law. 24 25 The matter may also include private, protected data, which shall refer to any 26 information that a party believes in good faith to be subject to federal, state or 27 foreign data protection laws or other privacy obligations. Examples of such data 1 U.S.C. § 6801 et seq. (financial information); and, The Health Insurance Portability 2 and Accountability Act and the regulations thereunder, 45 CFR Part 160 and 3 Subparts A and E of Part 164 (medical information). 4 5 Accordingly, to expedite the flow of information, to facilitate the prompt 6 resolution of disputes over confidentiality of discovery materials, to adequately 7 protect information the parties are entitled to keep confidential, to ensure that the 8 parties are permitted reasonable necessary uses of such material in preparation for and 9 in the conduct of trial, to address their handling at the end of the litigation, and serve 10 the ends of justice, a protective order for such information is justified in this matter. 11 It is the intent of the parties that information will not be designated as confidential for 12 tactical reasons and that nothing be so designated without a good faith belief that it 13 has been maintained in a confidential, non-public manner, and there is good cause 14 why it should not be part of the public record of this case. 15 2. DEFINITIONS 16 2.1 Action: Patricia Gage v. Walmart Inc., Case No. 2:24-cv-00921-SVW- 17 AJR. 18 2.2 Challenging Party: a Party or Non-Party that challenges the designation 19 of information or items under this Order. 20 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 21 how it is generated, stored or maintained) or tangible things that qualify for protection 22 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 23 Cause Statement. 24 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 25 support staff). 26 2.5 Designating Party: a Party or Non-Party that designates information or 27 items that it produces in disclosures or in responses to discovery as 1 2.6 Disclosure or Discovery Material: all items or information, regardless 2 of the medium or manner in which it is generated, stored, or maintained (including, 3 among other things, testimony, transcripts, and tangible things), that are produced or 4 generated in disclosures or responses to discovery in this matter. 5 2.7 Expert: a person with specialized knowledge or experience in a matter 6 pertinent to the litigation who has been retained by a Party or its counsel to serve as 7 an expert witness or as a consultant in this Action. 8 2.8 House Counsel: attorneys who are employees of a party to this Action. 9 House Counsel does not include Outside Counsel of Record or any other outside 10 counsel. 11 2.9 Non-Party: any natural person, partnership, corporation, association, or 12 other legal entity not named as a Party to this action. 13 2.10 Outside Counsel of Record: attorneys who are not employees of a party 14 to this Action but are retained to represent or advise a party to this Action and have 15 appeared in this Action on behalf of that party or are affiliated with a law firm that 16 has appeared on behalf of that party, including support staff. 17 2.11 Party: any party to this Action, including all of its officers, directors, 18 employees, consultants, retained experts, and Outside Counsel of Record (and their 19 support staffs). 20 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 21 Discovery Material in this Action. 22 2.13 Professional Vendors: persons or entities that provide litigation support 23 services (e.g., photocopying, videotaping, translating, preparing exhibits or 24 demonstrations, and organizing, storing, or retrieving data in any form or medium) 25 and their employees and subcontractors. 26 2.14 Protected Material: any Disclosure or Discovery Material that is 27 designated as “CONFIDENTIAL.” 1 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 2 from a Producing Party. 3 4 3. SCOPE 5 The protections conferred by this Stipulation and Order cover not only 6 Protected Material (as defined above), but also (1) any information copied or extracted 7 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 8 Protected Material; and (3) any testimony, conversations, or presentations by Parties 9 or their Counsel that might reveal Protected Material. 10 Any use of Protected Material at trial shall be governed by the orders of the 11 trial judge. This Order does not govern the use of Protected Material at trial. 12 13 4. DURATION 14 Once a case proceeds to trial, all of the court-filed information to be introduced 15 that was previously designated as confidential or maintained pursuant to this 16 protective order becomes public and will be presumptively available to all members 17 of the public, including the press, unless compelling reasons supported by specific 18 factual findings to proceed otherwise are made to the trial judge in advance of the 19 trial. See Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 20 2006) (distinguishing “good cause” showing for sealing documents produced in 21 discovery from “compelling reasons” standard when merits-related documents are 22 part of court record). Accordingly, the terms of this protective order do not extend 23 beyond the commencement of the trial. 24 25 5. DESIGNATING PROTECTED MATERIAL 26 5.1 Exercise of Restraint and Care in Designating Material for Protection. 27 Each Party or Non-Party that designates information or items for protection under this 1 under the appropriate standards. The Designating Party must designate for protection 2 only those parts of material, documents, items, or oral or written communications that 3 qualify so that other portions of the material, documents, items, or communications 4 for which protection is not warranted are not swept unjustifiably within the ambit of 5 this Order. 6 Mass, indiscriminate, or routinized designations are prohibited. Designations 7 that are shown to be clearly unjustified or that have been made for an improper 8 purpose (e.g., to unnecessarily encumber the case development process or to impose 9 unnecessary expenses and burdens on other parties) may expose the Designating Party 10 to sanctions. 11 If it comes to a Designating Party’s attention that information or items that it 12 designated for protection do not qualify for protection, that Designating Party must 13 promptly notify all other Parties that it is withdrawing the inapplicable designation. 14 5.2 Manner and Timing of Designations. Except as otherwise provided in 15 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 16 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 17 under this Order must be clearly so designated before the material is disclosed or 18 produced. 19 Designation in conformity with this Order requires: 20 (a) for information in documentary form (e.g., paper or electronic 21 documents, but excluding transcripts of depositions or other pretrial or trial 22 proceedings), that the Producing Party affix, at a minimum, the legend 23 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 24 contains protected material. If only a portion or portions of the material on a page 25 qualifies for protection, the Producing Party also must clearly identify the protected 26 portion(s) (e.g., by making appropriate markings in the margins). 27 A Party or Non-Party that makes original documents available for inspection 1 which documents it would like copied and produced. During the inspection and 2 before the designation, all of the material made available for inspection shall be 3 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents 4 it wants copied and produced, the Producing Party must determine which documents, 5 or portions thereof, qualify for protection under this Order. Then, before producing 6 the specified documents, the Producing Party must affix the “CONFIDENTIAL 7 legend” to each page that contains Protected Material. If only a portion or portions 8 of the material on a page qualifies for protection, the Producing Party also must clearly 9 identify the protected portion(s) (e.g., by making appropriate markings in the 10 margins). 11 (b) for testimony given in depositions that the Designating Party identify 12 the Disclosure or Discovery Material on the record, before the close of the deposition. 13 (c) for information produced in some form other than documentary and 14 for any other tangible items, that the Producing Party affix in a prominent place on 15 the exterior of the container or containers in which the information is stored the legend 16 “CONFIDENTIAL.” If only a portion or portions of the information warrants 17 protection, the Producing Party, to the extent practicable, shall identify the protected 18 portion(s). 19 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 20 failure to designate qualified information or items does not, standing alone, waive the 21 Designating Party’s right to secure protection under this Order for such material. 22 Upon timely correction of a designation, the Receiving Party must make reasonable 23 efforts to assure that the material is treated in accordance with the provisions of this 24 Order. 25 26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 27 1 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 2 designation of confidentiality at any time that is consistent with the Court’s 3 Scheduling Order. 4 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 5 resolution process under Local Rule 37-1, et seq. Any discovery motion must strictly 6 comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3. 7 6.3 Burden. The burden of persuasion in any such challenge proceeding 8 shall be on the Designating Party. Frivolous challenges, and those made for an 9 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 10 other parties) may expose the Challenging Party to sanctions. Unless the Designating 11 Party has waived or withdrawn the confidentiality designation, all parties shall 12 continue to afford the material in question the level of protection to which it is entitled 13 under the Producing Party’s designation until the Court rules on the challenge. 14 15 7. ACCESS TO AND USE OF PROTECTED MATERIAL 16 7.1 Basic Principles. A Receiving Party may use Protected Material that is 17 disclosed or produced by another Party or by a Non-Party in connection with this 18 Action only for prosecuting, defending, or attempting to settle this Action. Such 19 Protected Material may be disclosed only to the categories of persons and under the 20 conditions described in this Order. When the Action has been terminated, a Receiving 21 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 22 Protected Material must be stored and maintained by a Receiving Party at a 23 location and in a secure manner that ensures that access is limited to the persons 24 authorized under this Order. 25 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 26 otherwise ordered by the Court or permitted in writing by the Designating Party, a 27 Receiving Party may disclose any information or item designated 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 2 well as employees of said Outside Counsel of Record to whom it is reasonably 3 necessary to disclose the information for this Action; 4 (b) the officers, directors, and employees (including House Counsel) of 5 the Receiving Party to whom disclosure is reasonably necessary for this Action; 6 (c) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (d) the Court and its personnel; 10 (e) court reporters and their staff; 11 (f) professional jury or trial consultants, mock jurors, and Professional 12 Vendors to whom disclosure is reasonably necessary for this Action and who have 13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (g) the author or recipient of a document containing the information or 15 a custodian or other person who otherwise possessed or knew the information; 16 (h) during their depositions, witnesses, and attorneys for witnesses, in 17 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 18 party requests that the witness sign the form attached as Exhibit A hereto; and (2) they 19 will not be permitted to keep any confidential information unless they sign the 20 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 21 agreed by the Designating Party or ordered by the Court. Pages of transcribed 22 deposition testimony or exhibits to depositions that reveal Protected Material may be 23 separately bound by the court reporter and may not be disclosed to anyone except as 24 permitted under this Stipulated Protective Order; and 25 (i) any mediator or settlement officer, and their supporting personnel, 26 mutually agreed upon by any of the parties engaged in settlement discussions. 27 1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation 4 that compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL,” that Party must: 6 (a) promptly notify in writing the Designating Party. Such notification shall 7 include a copy of the subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order to 9 issue in the other litigation that some or all of the material covered by the subpoena 10 or order is subject to this Protective Order. Such notification shall include a copy of 11 this Stipulated Protective Order; and 12 (c) cooperate with respect to all reasonable procedures sought to be pursued 13 by the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served with 15 the subpoena or court order shall not produce any information designated in this action 16 as “CONFIDENTIAL” before a determination by the court from which the subpoena 17 or order issued, unless the Party has obtained the Designating Party’s permission. The 18 Designating Party shall bear the burden and expense of seeking protection in that court 19 of its confidential material and nothing in these provisions should be construed as 20 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 21 directive from another court. 22 23 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 24 PRODUCED IN THIS LITIGATION 25 (a) The terms of this Order are applicable to information produced by a Non- 26 Party in this Action and designated as “CONFIDENTIAL.” Such information 27 produced by Non-Parties in connection with this litigation is protected by the 1 remedies and relief provided by this Order. Nothing in these provisions should be 2 construed as prohibiting a Non-Party from seeking additional protections. 3 (b) In the event that a Party is required, by a valid discovery request, to produce 4 a Non-Party’s confidential information in its possession, and the Party is subject to an 5 agreement with the Non-Party not to produce the Non-Party’s confidential 6 information, then the Party shall: 7 (1) promptly notify in writing the Requesting Party and the Non-Party 8 that some or all of the information requested is subject to a confidentiality agreement 9 with a Non-Party; 10 (2) promptly provide the Non-Party with a copy of the Stipulated 11 Protective Order in this Action, the relevant discovery request(s), and a reasonably 12 specific description of the information requested; and 13 (3) make the information requested available for inspection by the Non- 14 Party, if requested. 15 (c) If the Non-Party fails to seek a protective order from this Court within 14 16 days of receiving the notice and accompanying information, the Receiving Party may 17 produce the Non-Party’s confidential information responsive to the discovery request. 18 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce 19 any information in its possession or control that is subject to the confidentiality 20 agreement with the Non-Party before a determination by the Court. Absent a court 21 order to the contrary, the Non-Party shall bear the burden and expense of seeking 22 protection in this Court of its Protected Material. 23 24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 26 Protected Material to any person or in any circumstance not authorized under this 27 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 1 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 2 persons to whom unauthorized disclosures were made of all the terms of this Order, 3 and (d) request such person or persons to execute the “Acknowledgment and 4 Agreement to Be Bound” that is attached hereto as Exhibit A. 5 6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 7 PROTECTED MATERIAL 8 When a Producing Party gives notice to Receiving Parties that certain 9 inadvertently produced material is subject to a claim of privilege or other protection, 10 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 11 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 12 may be established in an e-discovery order that provides for production without prior 13 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 14 parties reach an agreement on the effect of disclosure of a communication or 15 information covered by the attorney-client privilege or work product protection, the 16 parties may incorporate their agreement in the stipulated protective order submitted 17 to the Court. 18 19 12. MISCELLANEOUS 20 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 21 person to seek its modification by the Court in the future. 22 12.2 Right to Assert Other Objections. By stipulating to the entry of this 23 Protective Order, no Party waives any right it otherwise would have to object to 24 disclosing or producing any information or item on any ground not addressed in this 25 Stipulated Protective Order. Similarly, no Party waives any right to object on any 26 ground to use in evidence of any of the material covered by this Protective Order. 27 12.3 Filing Protected Material. A Party that seeks to file under seal any 1 only be filed under seal pursuant to a court order authorizing the sealing of the specific 2 Protected Material at issue; good cause must be shown in the request to file under 3 seal. If a Party’s request to file Protected Material under seal is denied by the Court, 4 then the Receiving Party may file the information in the public record unless 5 otherwise instructed by the Court. 6 7 13. FINAL DISPOSITION 8 After the final disposition of this Action, within 60 days of a written request by 9 the Designating Party, each Receiving Party must return all Protected Material to the 10 Producing Party or destroy such material. As used in this subdivision, “all Protected 11 Material” includes all copies, abstracts, compilations, summaries, and any other 12 format reproducing or capturing any of the Protected Material. Whether the Protected 13 Material is returned or destroyed, the Receiving Party must submit a written 14 certification to the Producing Party (and, if not the same person or entity, to the 15 Designating Party) by the 60 day deadline that (1) identifies (by category, where 16 appropriate) all the Protected Material that was returned or destroyed, and (2) affirms 17 that the Receiving Party has not retained any copies, abstracts, compilations, 18 summaries or any other format reproducing or capturing any of the Protected Material. 19 Notwithstanding this provision, counsel are entitled to retain an archival copy of all 20 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 21 correspondence, deposition and trial exhibits, expert reports, attorney work product, 22 and consultant and expert work product, even if such materials contain Protected 23 Material. Any such archival copies that contain or constitute Protected Material 24 remain subject to this Protective Order as set forth in Section 4 (DURATION). 25 /// 26 /// 27 /// 1\/14.. VIOLATION OF ORDER 2 Any violation of this Order may be punished by any and all appropriate 3|/measures including, without limitation, contempt proceedings and/or monetary 4 || sanctions. 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. g ILG Legal Office, P .C. 10 DATED: March 5, 2024 By: /s/ Nicolas Jupillat 11 STEPHEN NOEL ILG D SYDNEY WILBERTON NICOLAS JUPILLAT 13 Attorneys for Plaintiff PATRICIA GAGE 13 || DATED: March 5, 2024 PAYNE & FEARS LLP 46 Attorneys at Law 17 18 By: /s/ Bree A. Oswald 19 DANIEL F. FEARS 20 ANDREW K. HAEFFELE BREE A. OSWALD 21 22 Attorneys for Walmart Inc. 23 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 25 . » DATED: __ 3/5/24 HON. AY JOEL RICHLIN 27 United States Magistrate Judge || 4856-2274-7307.1 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [full name], of _________________ 5 [full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States 7 District Court for the Central District of California on ____________ [date] in the 8 case of ___________ [insert case name and number]. I agree to comply with and 9 to be bound by all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and punishment 11 in the nature of contempt. I solemnly promise that I will not disclose in any manner 12 any information or item that is subject to this Stipulated Protective Order to any 13 person or entity except in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint __________________________ [full 18 name] of _______________________________________ [full address and 19 telephone number] as my California agent for service of process in connection with 20 this action or any proceedings related to enforcement of this Stipulated Protective 21 Order. 22 Date: ______________________________________ 23 City and State where signed: _________________________________ 24 25 Printed name: _______________________________ 26 27 Signature: __________________________________