Ruthaleen Lopez v. Costco Wholesale Corporation ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 RUTHALENE LOPEZ, an individual, Case No. 2:18-cv-10168-ODW (JDEx) 12 Plaintiff, STIPULATED PROTECTIVE 13 v. ORDER 14 COSTCO WHOLESALE CORPORATION, a Washington 15 Corporation; and DOES 1 through 50, Magistrate Judge John D. Early Inclusive, 16 Defendant. 17 Trial Date: 4/14/2020 18 19 Based on the parties’ stipulation (Dkt. 17), and finding good cause therefor, 20 the Court finds and orders as follows: 21 1. PURPOSES AND LIMITATIONS 22 Discovery in this action is likely to involve production of confidential, 23 proprietary or private information for which special protection from public 24 disclosure and from use for any purpose other than pursuing this litigation may be 25 warranted. Accordingly, the parties hereby stipulate to and petition the Court to 26 enter the following Stipulated Protective Order. The parties acknowledge that this 27 Order does not confer blanket protections on all disclosures or responses to 1 only to the limited information or items that are entitled to confidential treatment 2 under the applicable legal principles. 3 2. GOOD CAUSE STATEMENT 4 Good cause exists for this Stipulated Protective Order because Costco's 5 policies and procedures documents contain proprietary information of Costco and 6 Costco only authorizes production of these proprietary documents subject to a 7 protective order. Costco would suffer harm if its proprietary policies and 8 procedures documents were disseminated. This Stipulated Protective Order is 9 meant to encompass all forms of disclosure which may contain confidential 10 material, including all documents, pleadings, motions, exhibits, declarations, 11 affidavits, deposition transcripts, inspection reports, and all other tangible items 12 (electronic media, photographs, videocassettes, etc.) For purposes of this Stipulated 13 Protective Order confidential Costco Wholesale Corporation's policies, procedures 14 documents and material are specifically defined as follows: 15 - Floorwalk Program; 16 - Warehouse Operation - Floorwalks; 17 - Warehouse Operations – Job Responsibility; 18 - Spill Response; 19 - Employee Agreement – General Safety Rules; 20 - Training DVD-R (for Floorwalks employees); 21 The aforementioned confidential and proprietary materials are generally 22 unavailable to the public. Accordingly, to expedite the flow of information, to 23 facilitate the prompt resolution of disputes over confidentiality of discovery 24 materials, to adequately protect information the parties are entitled to keep 25 confidential, to ensure that the parties are permitted reasonable necessary uses of 26 such material in preparation for and in the conduct of trial, to address their handling 27 at the end of the litigation, and serve the ends of justice, a protective order for such 1 will not be designated as confidential for tactical reasons and that nothing be so 2 designated without a good faith belief that it has been maintained in a confidential, 3 non-public manner, and there is good cause why it should not be part of the public 4 record of this case. 5 3. ACKNOWLEDGMENT OF UNDER SEAL FILING 6 PROCEDURE 7 The parties further acknowledge, as set forth in Section 14.3, below, that this 8 Stipulated Protective Order does not entitle them to file confidential information 9 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 10 and the standards that will be applied when a party seeks permission from the court 11 to file material under seal. There is a strong presumption that the public has a right 12 of access to judicial proceedings and records in civil cases. In connection with non- 13 dispositive motions, good cause must be shown to support a filing under seal. See 14 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 15 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 16 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 17 stipulated protective orders require good cause showing), and a specific showing of 18 good cause or compelling reasons with proper evidentiary support and legal 19 justification, must be made with respect to Protected Material that a party seeks to 20 file under seal. The parties’ mere designation of Disclosure or Discovery Material as 21 CONFIDENTIAL does not— without the submission of competent evidence by 22 declaration, establishing that the material sought to be filed under seal qualifies as 23 confidential, privileged, or otherwise protectable—constitute good cause. 24 Further, if a party requests sealing related to a dispositive motion or trial, then 25 compelling reasons, not only good cause, for the sealing must be shown, and the 26 relief sought shall be narrowly tailored to serve the specific interest to be protected. 27 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For 1 under seal, the party seeking protection must articulate compelling reasons, 2 supported by specific facts and legal justification, for the requested sealing order. 3 Again, competent evidence supporting the application to file documents under seal 4 must be provided by declaration. 5 Any document that is not confidential, privileged, or otherwise protectable in its 6 entirety will not be filed under seal if the confidential portions can be redacted. If 7 documents can be redacted, then a redacted version for public viewing, omitting 8 only the confidential, privileged, or otherwise protectable portions of the document, 9 shall be filed. Any application that seeks to file documents under seal in their 10 entirety should include an explanation of why redaction is not feasible. 11 4. DEFINITIONS 12 4.1 Action: Ruthalene Lopez v. Costco Wholesale Corporation. 13 4.2 Challenging Party: a Party or Non-Party that challenges the 14 designation of information or items under this Order. 15 4.3 “CONFIDENTIAL” Information or Items: information (regardless of 16 how it is generated, stored or maintained) or tangible things that qualify for 17 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 18 the Good Cause Statement. 19 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as 20 their support staff). 21 4.5 Designating Party: a Party or Non-Party that designates information or 22 items that it produces in disclosures or in responses to discovery as 23 “CONFIDENTIAL.” 24 4.6 Disclosure or Discovery Material: all items or information, regardless 25 of the medium or manner in which it is generated, stored, or maintained (including, 26 among other things, testimony, transcripts, and tangible things), that are produced or 27 generated in disclosures or responses to discovery. 1 pertinent to the litigation who has been retained by a Party or its counsel to serve as 2 an expert witness or as a consultant in this Action. 3 4.8 House Counsel: attorneys who are employees of a party to this Action. 4 House Counsel does not include Outside Counsel of Record or any other outside 5 counsel. 6 4.9 Non-Party: any natural person, partnership, corporation, association or 7 other legal entity not named as a Party to this action. 8 4.10 Outside Counsel of Record: attorneys who are not employees of a party 9 to this Action but are retained to represent a party to this Action and have appeared 10 in this Action on behalf of that party or are affiliated with a law firm that has 11 appeared on behalf of that party, and includes support staff. 12 4.11 Party: any party to this Action, including all of its officers, directors, 13 employees, consultants, retained experts, and Outside Counsel of Record (and their 14 support staffs). 15 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 16 Discovery Material in this Action. 17 4.13 Professional Vendors: persons or entities that provide litigation support 18 services (e.g., photocopying, videotaping, translating, preparing exhibits or 19 demonstrations, and organizing, storing, or retrieving data in any form or medium) 20 and their employees and subcontractors. 21 4.14 Protected Material: any Disclosure or Discovery Material that is 22 designated as “CONFIDENTIAL.” 23 4.15 Receiving Party: a Party that receives Disclosure or Discovery 24 Material from a Producing Party. 25 5. SCOPE 26 The protections conferred by this Stipulation and Order cover not only 27 Protected Material (as defined above), but also (1) any information copied or 1 compilations of Protected Material; and (3) any testimony, conversations, or 2 presentations by Parties or their Counsel that might reveal Protected Material. 3 Any use of Protected Material at trial shall be governed by the orders of the 4 trial judge and other applicable authorities. This Order does not govern the use of 5 Protected Material at trial. 6 6. DURATION 7 Once a case proceeds to trial, information that was designated as 8 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 9 as an exhibit at trial becomes public and will be presumptively available to all 10 members of the public, including the press, unless compelling reasons supported by 11 specific factual findings to proceed otherwise are made to the trial judge in advance 12 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 13 showing for sealing documents produced in discovery from “compelling reasons” 14 standard when merits-related documents are part of court record). Accordingly, the 15 terms of this protective order do not extend beyond the commencement of the trial. 16 7. DESIGNATING PROTECTED MATERIAL 17 7.1 Exercise of Restraint and Care in Designating Material for 18 Protection. Each Party or Non-Party that designates information or 19 items for protection under this Order must take care to limit any such designation to 20 specific material that qualifies under the appropriate standards. The Designating 21 Party must designate for protection only those parts of material, documents, items or 22 oral or written communications that qualify so that other portions of the material, 23 documents, items or communications for which protection is not warranted are not 24 swept unjustifiably within the ambit of this Order. 25 Mass, indiscriminate or routinized designations are prohibited. Designations 26 that are shown to be clearly unjustified or that have been made for an improper 27 purpose (e.g., to unnecessarily encumber the case development process or to impose 1 Party to sanctions. 2 If it comes to a Designating Party’s attention that information or items that it 3 designated for protection do not qualify for protection, that Designating Party must 4 promptly notify all other Parties that it is withdrawing the inapplicable designation. 5 7.2 Manner and Timing of Designations. Except as otherwise provided in 6 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material 7 that qualifies for protection under this Order must be clearly so designated before 8 the material is disclosed or produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (e.g., paper or electronic 11 documents, but excluding transcripts of depositions or other pretrial or trial 12 proceedings), that the Producing Party affix at a minimum, the legend 13 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 14 contains protected material. If only a portion of the material on a page qualifies for 15 protection, the Producing Party also must clearly identify the protected portion(s) 16 (e.g., by making appropriate markings in the margins). 17 A Party or Non-Party that makes original documents available for inspection 18 need not designate them for protection until after the inspecting Party has indicated 19 which documents it would like copied and produced. During the inspection and 20 before the designation, all of the material made available for inspection shall be 21 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 22 documents it wants copied and produced, the Producing Party must determine which 23 documents, or portions thereof, qualify for protection under this Order. Then, before 24 producing the specified documents, the Producing Party must affix the 25 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 26 portion of the material on a page qualifies for protection, the Producing Party also 27 must clearly identify the protected portion(s) (e.g., by making appropriate markings 1 (b) for testimony given in depositions that the Designating Party 2 identifies the Disclosure or Discovery Material on the record, before the close of the 3 deposition all protected testimony. 4 (c) for information produced in some form other than documentary and 5 for any other tangible items, that the Producing Party affix in a prominent place on 6 the exterior of the container or containers in which the information is stored the 7 legend “CONFIDENTIAL.” If only a portion or portions of the information 8 warrants protection, the Producing Party, to the extent practicable, shall identify the 9 protected portion(s). 10 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive 12 the Designating Party’s right to secure protection under this Order for such material. 13 Upon timely correction of a designation, the Receiving Party must make reasonable 14 efforts to assure that the material is treated in accordance with the provisions of this 15 Order. 16 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19 Scheduling Order. 20 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 21 resolution process under Local Rule 37-1 et seq. 22 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 23 joint stipulation pursuant to Local Rule 37-2. 24 8.4 The burden of persuasion in any such challenge proceeding shall be on 25 the Designating Party. Frivolous challenges, and those made for an improper 26 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 27 parties) may expose the Challenging Party to sanctions. Unless the Designating 1 continue to afford the material in question the level of protection to which it is 2 entitled under the Producing Party’s designation until the Court rules on the 3 challenge. 4 9. ACCESS TO AND USE OF PROTECTED MATERIAL 5 9.1 Basic Principles. A Receiving Party may use Protected Material that is 6 disclosed or produced by another Party or by a Non-Party in connection with this 7 Action only for prosecuting, defending or attempting to settle this Action. Such 8 Protected Material may be disclosed only to the categories of persons and under the 9 conditions described in this Order. When the Action has been terminated, a 10 Receiving Party must comply with the provisions of section 15 below (FINAL 11 DISPOSITION). 12 Protected Material must be stored and maintained by a Receiving Party at a 13 location and in a secure manner that ensures that access is limited to the persons 14 authorized under this Order. 15 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 16 otherwise ordered by the court or permitted in writing by the Designating Party, a 17 Receiving Party may disclose any information or item designated 18 “CONFIDENTIAL” only to: 19 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 20 well as employees of said Outside Counsel of Record to whom it is reasonably 21 necessary to disclose the information for this Action; 22 (b) the officers, directors, and employees (including House Counsel) of 23 the Receiving Party to whom disclosure is reasonably necessary for this Action; 24 (c) Experts (as defined in this Order) of the Receiving Party to whom 25 disclosure is reasonably necessary for this Action and who have signed the 26 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 (d) the court and its personnel; 1 (f) professional jury or trial consultants, mock jurors, and Professional 2 Vendors to whom disclosure is reasonably necessary for this Action and who have 3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (g) the author or recipient of a document containing the information or 5 a custodian or other person who otherwise possessed or knew the information; 6 (h) during their depositions, witnesses, and attorneys for witnesses, in 7 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 8 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 9 they will not be permitted to keep any confidential information unless they sign the 10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 11 agreed by the Designating Party or ordered by the court. Pages of transcribed 12 deposition testimony or exhibits to depositions that reveal Protected Material may 13 be separately bound by the court reporter and may not be disclosed to anyone except 14 as permitted under this Stipulated Protective Order; and 15 (i) any mediators or settlement officers and their supporting personnel, 16 mutually agreed upon by any of the parties engaged in settlement discussions. 17 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED 18 PRODUCED IN OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other litigation 20 that compels disclosure of any information or items designated in this Action as 21 “CONFIDENTIAL,” that Party must: 22 (a) promptly notify in writing the Designating Party. Such notification 23 shall include a copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or 25 order to issue in the other litigation that some or all of the material covered by the 26 subpoena or order is subject to this Protective Order. Such notification shall include 27 a copy of this Stipulated Protective Order; and 1 pursued by the Designating Party whose Protected Material may be affected. If the 2 Designating Party timely seeks a protective order, the Party served with the 3 subpoena or court order shall not produce any information designated in this action 4 as “CONFIDENTIAL” before a determination by the court from which the 5 subpoena or order issued, unless the Party has obtained the Designating Party’s 6 permission. The Designating Party shall bear the burden and expense of seeking 7 protection in that court of its confidential material and nothing in these provisions 8 should be construed as authorizing or encouraging a Receiving Party in this Action 9 to disobey a lawful directive from another court. 10 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO 11 BE PRODUCED IN THIS LITIGATION 12 (a) The terms of this Order are applicable to information produced by a 13 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 14 produced by Non-Parties in connection with this litigation is protected by the 15 remedies and relief provided by this Order. Nothing in these provisions should be 16 construed as prohibiting a Non-Party from seeking additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to 18 produce a Non-Party’s confidential information in its possession, and the Party is 19 subject to an agreement with the Non-Party not to produce the Non-Party’s 20 confidential information, then the Party shall: 21 (1) promptly notify in writing the Requesting Party and the Non-Party 22 that some or all of the information requested is subject to a confidentiality 23 agreement with a Non-Party; 24 (2) promptly provide the Non-Party with a copy of the Stipulated 25 Protective Order in this Action, the relevant discovery request(s), and a reasonably 26 specific description of the information requested; and 27 (3) make the information requested available for inspection by the Non- 1 (c) If the Non-Party fails to seek a protective order from this court 2 within 14 days of receiving the notice and accompanying information, the Receiving 3 Party may produce the Non-Party’s confidential information responsive to the 4 discovery request. If the Non-Party timely seeks a protective order, the Receiving 5 Party shall not produce any information in its possession or control that is subject to 6 the confidentiality agreement with the Non-Party before a determination by the 7 court. Absent a court order to the contrary, the Non-Party shall bear the burden and 8 expense of seeking protection in this court of its Protected Material. 9 12. UNAUTHORIZED DISCLOSURE OF PROTECTED 10 MATERIAL 11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 12 Protected Material to any person or in any circumstance not authorized under this 13 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 14 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 15 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 16 persons to whom unauthorized disclosures were made of all the terms of this Order, 17 and (d) request such person or persons to execute the “Acknowledgment an 18 Agreement to Be Bound” attached hereto as Exhibit A. 19 13. INADVERTENT PRODUCTION OF PRIVILEGED OR 20 OTHERWISE PROTECTED MATERIAL 21 When a Producing Party gives notice to Receiving Parties that certain 22 inadvertently produced material is subject to a claim of privilege or other protection, 23 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil\ 24 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 25 may be established in an e-discovery order that provides for production without 26 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar 27 as the parties reach an agreement on the effect of disclosure of a communication or 1 parties may incorporate their agreement in the stipulated protective order submitted 2 to the court. 3 14. MISCELLANEOUS 4 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 5 person to seek its modification by the Court in the future. 6 14.2 Right to Assert Other Objections. By stipulating to the entry of this 7 Protective Order, no Party waives any right it otherwise would have to object to 8 disclosing or producing any information or item on any ground not addressed in this 9 Stipulated Protective Order. Similarly, no Party waives any right to object on any 10 ground to use in evidence of any of the material covered by this Protective Order. 11 14.3 Filing Protected Material. A Party that seeks to file under seal any 12 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 13 only be filed under seal pursuant to a court order authorizing the sealing of the 14 specific Protected Material. If a Party’s request to file Protected Material under seal 15 is denied by the court, then the Receiving Party may file the information in the 16 public record unless otherwise instructed by the court. 17 15. FINAL DISPOSITION 18 After the final disposition of this Action, as defined in paragraph 6, within 60 19 days of a written request by the Designating Party, each Receiving Party must return 20 all Protected Material to the Producing Party or destroy such material. As used in 21 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 22 summaries, and any other format reproducing or capturing any of the Protected 23 Material. Whether the Protected Material is returned or destroyed, the Receiving 24 Party must submit a written certification to the Producing Party (and, if not the same 25 person or entity, to the Designating Party) by the 60-day deadline that (1) identifies 26 (by category, where appropriate) all the Protected Material that was returned or 27 destroyed and (2) affirms that the Receiving Party has not retained any copies, 1 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to 2 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 3 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 4 || reports, attorney work product, and consultant and expert work product, even if such 5 || materials contain Protected Material. Any such archival copies that contain or 6 || constitute Protected Material remain subject to this Protective Order as set forth in 7 || Section 6 (DURATION). 8 16. VIOLATION 9 Any violation of this Order may be punished by appropriate measures 10 || including, without limitation, contempt proceedings and/or monetary sanctions. 11 12 |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 13 14|| DATED: October 10, 2019 Is gh et 16 nited States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ________________________________, [print or type full name], of 4 _________________________________________ [print or type full address], 5 declare under penalty of perjury that I have read in its entirety and understand the 6 Stipulated Protective Order that was issued by the United States District Court for 7 the Central District of California on October 10, 2019 in the case of Ruthalene 8 Lopez v. Costco Wholesale Corporation, (U.S.D.C. Case No. 2:18-cv-10168-ODW- 9 (JDEx).) I agree to comply with and to be bound by all the terms of this Stipulated 10 Protective Order and I understand and acknowledge that failure to so comply could 11 expose me to sanctions and punishment in the nature of contempt. I solemnly 12 promise that I will not disclose in any manner any information or item that is subject 13 to this Stipulation Protective Order to any person or entity except in strict 14 compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Central District of California for the purposes of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint 19 _____________________________[print or type full name] of 20 ___________________________________ [print or type full address and telephone 21 number] as my California agent for service of process in connection with this action 22 or any proceedings related to enforcement of this Stipulated Protective Order. 23 Date: _________________ 24 25 City and State where sworn and signed: _________________________________ 26 27 Printed Name: ___________________________________