Chan v. Wal-Mart Stores, Inc. ( 2019 )

1 || Ross A. Boughton, Bar No. 241119 rboughton @ fordharrison.com 2 || Timothy L. Reed, Bar No. 258034 treed @ fordharrison.com 3 || Dan R. Lyman, Bar No. 319010 dlyman @ fordharrison.com 4 || FORD & HARRISON LLP 505 Montgomery Street, Suite 1001 5 || San Francisco, CA 94111 Telephone: 415-852-6910 6 || Facsimile: 415-852-6925 7 || Attorneys for Defendant WALMART INC. (erroneously sued as 8 || WAL-MART STORES, INC.) 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 || JEROME CHAN, an individual, Case No. 2:19-CV-00506-TLN-KJIN 13 Plaintiff, Assigned to: Hon. Troy L. Nunley 14 |] v. ORDER GRANTING IN PART PARTIES’ STIPULATION FOR PROTECTIVE 15 || WAL-MART STORES, INC., an Arkansas ORDER corporation; and DOES 1-50, inclusive, 16 Action Filed: — February 13, 2019 Defendants. Removal Date: March 21, 2019 17 Trial Date: None Set 18 19 || 1. PURPOSES AND LIMITATIONS 20 Disclosure and discovery activity in this action are likely to involve production of 31 || confidential, proprietary, or private information for which special protection from public 92 || disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 23 || Accordingly, the parties hereby stipulate to and petition the court to enter the following 4 || Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 25 || protections on all disclosures or responses to discovery and that the protection it affords from 26 || public disclosure and use extends only to the limited information or items that are entitled to 97 || confidential treatment under the applicable legal principles. The parties further acknowledge, as 2g || set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to & HARRISON -l- STIPULATION FOR PROTECTIVE ORDER 1 || file confidential information under seal; the Local Rules and Eastern District of California’s 2 || ECF Policies and Procedures set forth the procedures that must be followed and the standards 3 || that will be applied when a party seeks permission from the court to file material under seal. 4 || 2. DEFINITIONS 5 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 6 || information or items under this Order. 7 2.2. “CONFIDENTIAL” Information or Items: information (regardless of how it is 8 || generated, stored or maintained) or tangible things that qualify for protection under Federal 9 || Rule of Civil Procedure 26(c). 10 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 11 || well as their support staff). 12 2.4 Designating Party: a Party or Non-Party that designates information or items 13 || that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 14 | CONFIDENTIAL — ATTORNEYS’ EYES ONLY”. 15 2.5 Disclosure or Discovery Material: all items or information, regardless of the 16 || medium or manner in which it is generated, stored, or maintained (including, among other 17 || things, testimony, transcripts, and tangible things), that are produced or generated in disclosures 18 |} or responses to discovery in this matter. 19 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent 20 || to the litigation who has been retained by a Party or its counsel to serve as an expert witness or 21 || as aconsultant in this action. 22 2.7 “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” Information or 23 || Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another 24 || Party or Non-Party would create a substantial risk of serious harm that could not be avoided by 25 || less restrictive means. 26 2.8 House Counsel: attorneys who are employees of a party to this action. House 27 || Counsel does not include Outside Counsel of Record or any other outside counsel. 28 2.9 Non-Party: any natural person, partnership, corporation, association, or other -2- STIPULATION FOR PROTECTIVE ORDER 1 || legal entity not named as a Party to this action. 2 2.10 Qutside Counsel of Record: attorneys who are not employees of a party to this 3 || action but are retained to represent or advise a party to this action and have appeared in this 4 || action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 5 || that party. 6 2.11 Party: any party to this action, including all of its officers, directors, employees, 7 || consultants, retained experts, and Outside Counsel of Record (and their support staffs). 8 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 9 || Material in this action. 10 2.13. Professional Vendors: persons or entities that provide litigation support services 11 || (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 12 || organizing, storing, or retrieving data in any form or medium) and their employees and 13 |} subcontractors. 14 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 15 |} “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY.” 16 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a 17 || Producing Party. 18 |] 3. SCOPE 19 The protections conferred by this Stipulation and Order cover not only Protected 20 || Material (as defined above), but also (1) any information copied or extracted from Protected 21 || Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 22 || testimony, conversations, or presentations by Parties or their Counsel that might reveal 23 || Protected Material. However, the protections conferred by this Stipulation and Order do not 24 || cover the following information: (a) any information that is in the public domain at the time of 25 || disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a 26 || Receiving Party as a result of publication not involving a violation of this Order, including 27 || becoming part of the public record through trial or otherwise; and (b) any information known to 28 || the Receiving Party prior to the disclosure or obtained by the Receiving Party after the -3- STIPULATION FOR PROTECTIVE ORDER 1 || disclosure from a source who obtained the information lawfully and under no obligation of 2 || confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed 3 || by a separate agreement or order. 4 | 4. DURATION 5 Even after final disposition of this litigation, the confidentiality obligations imposed by 6 || this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 7 || order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 8 || claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 9 || the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 10 action, including the time limits for filing any motions or applications for extension of time 11 || pursuant to applicable law. 12 || 5. DESIGNATING PROTECTED MATERIAL 13 5.1 Exercise of Restraint and Care in Designating Material for Protection, Each Party 14 || or Non-Party that designates information or items for protection under this Order must take care 15 || to limit any such designation to specific material that qualifies under the appropriate standards. 16 || The Designating Party must designate for protection only those parts of material, documents, 17 || items, or oral or written communications that qualify — so that other portions of the material, 18 || documents, items, or communications for which protection is not warranted are not swept 19 || unjustifiably within the ambit of this Order. 20 Mass, indiscriminate, or routinized designations are prohibited. 21 Designations that are shown to be clearly unjustified or that have been made for an 22 || improper purpose (e.g., to unnecessarily encumber or retard the case development process or to 23 || impose unnecessary expenses and burdens on other parties) expose the Designating Party to 24 || sanctions. 25 If it comes to a Designating Party’s attention that information or items that it designated 26 || for protection do not qualify for protection, that Designating Party must promptly notify all 27 || other Parties that it is withdrawing the mistaken designation. 28 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order & HARRISON -4- STIPULATION FOR PROTECTIVE ORDER 1 || (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 2 || Disclosure or Discovery Material that qualifies for protection under this Order must be clearly 3 || so designated before the material is disclosed or produced. 4 Designation in conformity with this Order requires: 5 (a) for information in documentary form (e.g., paper or electronic documents, 6 || but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 7 || Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ 8 || EYES ONLY” to each page that contains protected material. If only a portion or portions of the 9 || material on a page qualifies for protection, the Producing Party also must clearly identify the 10 || protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for 11 || each portion, the level of protection being asserted. 12 A Party or Non-Party that makes original documents or materials available for 13 || inspection need not designate them for protection until after the inspecting Party has indicated 14 || which material it would like copied and produced. During the inspection and before the 15 || designation, all of the material made available for inspection shall be deemed “HIGHLY 16 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified 17 || the documents it wants copied and produced, the Producing Party must determine which 18 || documents, or portions thereof, qualify for protection under this Order. Then, before producing 19 || the specified documents, the Producing Party must affix the appropriate legend 20 || (““CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” to each 21 || page that contains Protected Material. If only a portion or portions of the material on a page 22 || qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 23 || (e.g., by making appropriate markings in the margins) and must specify, for each portion, the 24 || level of protection being asserted. 25 (b) for testimony given in deposition or in other pretrial or trial proceedings, that 26 || the Designating Party identify on the record, before the close of the deposition, hearing, or other 27 || proceeding, all protected testimony and specify the level of protection being asserted. When it is 28 || impractical to identify separately each portion of testimony that is entitled to protection and it -5- STIPULATION FOR PROTECTIVE ORDER 1 || appears that substantial portions of the testimony may qualify for protection, the Designating 2 || Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) 3 || aright to have up to 21 days to identify the specific portions of the testimony as to which 4 || protection is sought and to specify the level of protection being asserted. Only those portions of 5 || the testimony that are appropriately designated for protection within the 21 days shall be covered 6 || by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may 7 || specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 8 || entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — 9 || ATTORNEYS’ EYES ONLY.” 10 Parties shall give the other parties notice if they reasonably expect a deposition, 11 || hearing or other proceeding to include Protected Material so that the other parties can ensure that 12 || only authorized individuals who have signed the “Acknowledgment and Agreement to Be 13 || Bound” (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a 14 || deposition shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 15 |} CONFIDENTIAL — ATTORNEYS’ EYES ONLY.” 16 Transcripts containing Protected Material shall have an obvious legend on the title 17 || page that the transcript contains Protected Material, and the title page shall be followed by a list 18 || of all pages (including line numbers as appropriate) that have been designated as Protected 19 || Material and the level of protection being asserted by the Designating Party. The Designating 20 || Party shall inform the court reporter of these requirements. Any transcript that is prepared before 21 || the expiration of a 21-day period for designation shall be treated during that period as if it had 22 || been designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” in its entirety 23 || unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as 24 || actually designated. 25 (c) for information produced in some form other than documentary and for any 26 || other tangible items, that the Producing Party affix in a prominent place on the exterior of the 27 || container or containers in which the information or item is stored the legend 28 || “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY”. If only -6- STIPULATION FOR PROTECTIVE ORDER 1 || a portion or portions of the information or item warrant protection, the Producing Party, to the 2 || extent practicable, shall identify the protected portion(s) and specify the level of protection 3 || being asserted. 4 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 5 || designate qualified information or items does not, standing alone, waive the Designating Party’s 6 || right to secure protection under this Order for such material. Upon timely correction of a 7 || designation, the Receiving Party must make reasonable efforts to assure that the material is 8 || treated in accordance with the provisions of this Order. 9 || 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 10 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 11 }| confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 12 || designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 13 || burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 14 || challenge a confidentiality designation by electing not to mount a challenge promptly after the 15 || original designation is disclosed. 16 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 17 || process by providing written notice of each designation it is challenging and describing the 18 || basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the 19 || written notice must recite that the challenge to confidentiality is being made in accordance with 20 || this specific paragraph of the Protective Order. The parties shall attempt to resolve each 21 || challenge in good faith and must begin the process by conferring directly (in voice to voice 22 || dialogue; other forms of communication are not sufficient) within 14 days of the date of service 23 || of notice. In conferring, the Challenging Party must explain the basis for its belief that the 24 || confidentiality designation was not proper and must give the Designating Party an opportunity 25 || to review the designated material, to reconsider the circumstances, and, if no change in 26 || designation is offered, to explain the basis for the chosen designation. A Challenging Party may 27 || proceed to the next stage of the challenge process only if it has engaged in this meet and confer 28 || process first or establishes that the Designating Party is unwilling to participate in the meet and -7- STIPULATION FOR PROTECTIVE ORDER 1 || confer process in a timely manner. 2 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 3 || intervention, the Designating Party shall file and serve a motion to retain confidentiality within 4 || 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet 5 || and confer process will not resolve their dispute, whichever is earlier. Each such motion must 6 || be accompanied by a competent declaration affirming that the movant has complied with the 7 || meet and confer requirements imposed in the preceding paragraph. Failure by the Designating 8 || Party to make such a motion including the required declaration within 21 days (or 14 days, if 9 || applicable) shall automatically waive the confidentiality designation for each challenged 10 || designation. In addition, the Challenging Party may file a motion challenging a confidentiality 11 || designation at any time if there is good cause for doing so, including a challenge to the 12 || designation of a deposition transcript or any portions thereof. Any motion brought pursuant to 13 || this provision must be accompanied by a competent declaration affirming that the movant has 14 || complied with the meet and confer requirements imposed by the preceding paragraph. 15 The burden of persuasion in any such challenge proceeding shall be on the Designating 16 || Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 17 || unnecessary expenses and burdens on other parties) may expose the Challenging Party to 18 || sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 19 || file a motion to retain confidentiality as described above, all parties shall continue to afford the 20 || material in question the level of protection to which it is entitled under the Producing Party’s 21 || designation until the court rules on the challenge. 22 || 7. ACCESS TO AND USE OF PROTECTED MATERIAL 23 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 24 || or produced by another Party or by a Non-Party in connection with this case only for 25 || prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 26 || disclosed only to the categories of persons and under the conditions described in this Order. 27 || When the litigation has been terminated, a Receiving Party must comply with the provisions of 28 || section 13 below (FINAL DISPOSITION). -8- STIPULATION FOR PROTECTIVE ORDER 1 Protected Material must be stored and maintained by a Receiving Party at a location and 2 || in a secure manner that ensures that access is limited to the persons authorized under this Order. 3 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 4 || ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 5 || disclose any information or item designated “CONFIDENTIAL” only to: 6 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 7 || employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 8 || information for this litigation and who have signed the “Acknowledgment and Agreement to Be 9 || Bound” that is attached hereto as Exhibit A; 10 (b) the officers, directors, and employees (including House Counsel) of the 11 || Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 12 |} signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 13 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure 14 |] is reasonably necessary for this litigation and who have signed the “Acknowledgment and 15 || Agreement to Be Bound” (Exhibit A); 16 (d) alternative dispute resolution neutrals (e.g., mediators); 17 (e) the court and its personnel; 18 (f) court reporters and their staff, professional jury or trial consultants, mock 19 || jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation 20 || and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 21 (g) during their depositions, witnesses in the action to whom disclosure is 22 || reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 23 || (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 24 || transcribed deposition testimony or exhibits to depositions that reveal Protected Material must 25 || be separately bound by the court reporter and may not be disclosed to anyone except as 26 || permitted under this Stipulated Protective Order. 27 (h) the author or recipient of a document containing the information or a 28 || custodian or other person who otherwise possessed or knew the information. -9- STIPULATION FOR PROTECTIVE ORDER 1 7.3. Disclosure of “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” 2 || Information or Items. Unless otherwise ordered by the court or permitted in writing by the 3 || Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 4 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY” only to: 5 (a) the Receiving Party’s House Counsel, Outside Counsel of Record in this 6 || action, as well as employees of said Outside Counsel of Record to whom it is reasonably 7 || necessary to disclose the information for this litigation and who have signed the 8 || “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A; 9 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary 10 || for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” 11 || (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been 12 }| followed; 13 (c) the court and its personnel; 14 (d) alternative dispute resolution neutrals (e.g., mediators); 15 (e) court reporters and their staff, professional jury or trial consultants, and 16 || Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 17 |} signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 18 (f) the author or recipient of a document containing the information or a custodian 19 || or other person who otherwise possessed or knew the information. 20 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY 21 |} CONFIDENTIAL — ATTORNEYS’ EYES ONLY” Information or Items to Experts. 22 (a) Unless otherwise ordered by the court or agreed to in writing by the 23 || Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any 24 || information or item that has been designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ 25 || EYES ONLY” pursuant to paragraph 7.3(c) first must make a written request to the Designating 26 || Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL — ATTORNEYS’ 27 || EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert, 28 || (2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3) - 10- STIPULATION FOR PROTECTIVE ORDER 1 |} attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5) 2 || identifies each person or entity from whom the Expert has received compensation or funding for 3 || work in his or her areas of expertise or to whom the expert has provided professional services, 4 || including in connection with a litigation, at any time during the preceding five years,! and (6) 5 || identifies (by name and number of the case, filing date, and location of court) any litigation in 6 || connection with which the Expert has offered expert testimony, including through a declaration, 7 || report, or testimony at a deposition or trial, during the preceding five years. 8 (b) A Party that makes a request and provides the information specified in the 9 || preceding respective paragraphs may disclose the subject Protected Material to the identified 10 || Expert unless, within 14 days of delivering the request, the Party receives a written objection 11 || from the Designating Party. Any such objection must set forth in detail the grounds on which it is 12 || based. 13 (c) A Party that receives a timely written objection must meet and confer with the 14 || Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 15 || agreement within seven days of the written objection. If no agreement is reached, the Party 16 || seeking to make the disclosure to the Expert may file a motion seeking permission from the court 17 || to do so. Any such motion must describe the circumstances with specificity, set forth in detail the 18 || reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm that the 19 || disclosure would entail, and suggest any additional means that could be used to reduce that risk. 20 || In addition, any such motion must be accompanied by a competent declaration describing the 21 || parties’ efforts to resolve the matter by agreement (1.e., the extent and the content of the meet and 22 || confer discussions) and setting forth the reasons advanced by the Designating Party for its refusal 23 || to approve the disclosure. 24 In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden 25 || of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) If the Expert believes any of this information is subject to a confidentiality obligation to a third- 27 || party, then the Expert must provide whatever information the Expert believes can be disclosed without violating any confidentiality agreements, and the Party seeking to disclose to the Expert 28 || shall be available to meet and confer with the Designating Party regarding any such engagement. & HARRISON -ll1- STIPULATION FOR PROTECTIVE ORDER 1 || outweighs the Receiving Party’s need to disclose the Protected Material to its Expert. 2 || 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 3 OTHER LITIGATION 4 If a Party is served with a subpoena or a court order issued in other litigation that 5 || compels disclosure of any information or items designated in this action as “CONFIDENTIAL” 6 || or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” that Party must: 7 (a) promptly notify in writing the Designating Party. Such notification shall 8 || include a copy of the subpoena or court order; 9 (b) promptly notify in writing the party who caused the subpoena or order to 10 || issue in the other litigation that some or all of the material covered by the subpoena or order is 11 || subject to this Protective Order. Such notification shall include a copy of this Stipulated 12 |} Protective Order; and 13 (c) cooperate with respect to all reasonable procedures sought to be pursued by 14 || the Designating Party whose Protected Material may be affected. 15 If the Designating Party timely seeks a protective order, the Party served with the 16 || subpoena or court order shall not produce any information designated in this action as 17 |} “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” before a 18 || determination by the court from which the subpoena or order issued, unless the Party has 19 || obtained the Designating Party’s permission. The Designating Party shall bear the burden and 20 || expense of seeking protection in that court of its confidential material — and nothing in these 21 || provisions should be construed as authorizing or encouraging a Receiving Party in this action to 22 || disobey a lawful directive from another court. 23 || 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 24 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” or “HIGHLY CONFIDENTIAL □ 27 || ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with 28 || this litigation is protected by the remedies and relief provided by this Order. Nothing in these -12- STIPULATION FOR PROTECTIVE ORDER 1 || provisions should be construed as prohibiting a Non-Party from seeking additional protections. 2 (b) In the event that a Party is required, by a valid discovery request, to produce 3 || a Non-Party’s confidential information in its possession, and the Party is subject to an 4 || agreement with the Non-Party not to produce the Non-Party’s confidential information, then the 5 || Party shall: 6 (1) promptly notify in writing the Requesting Party and the Non-Party 7 that some or all of the information requested is subject to a 8 confidentiality agreement with a Non-Party; 9 (2) promptly provide the Non-Party with a copy of the Stipulated 10 Protective Order in this litigation, the relevant discovery request(s), 11 and a reasonably specific description of the information requested; 12 and 13 (3) make the information requested available for inspection by the 14 Non-Party. 15 (c) If the Non-Party fails to object or seek a protective order from this court 16 || within 14 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. If the 18 || Non-Party timely seeks a protective order, the Receiving Party shall not produce any 19 || information in its possession or control that is subject to the confidentiality agreement with the 20 || Non-Party before a determination by the court. Absent a court order to the contrary, the Non- 21 || Party shall bear the burden and expense of seeking protection in this court of its Protected 22 || Material. 23 | 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 25 || Material to any person or in any circumstance not authorized under this Stipulated Protective 26 || Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 27 || unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 28 || Protected Material, (c) inform the person or persons to whom unauthorized disclosures were - 13- STIPULATION FOR PROTECTIVE ORDER 1 || made of all the terms of this Order, and (d) request such person or persons to execute the 2 || “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 3 |} 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 4 PROTECTED MATERIAL 5 When a Producing Party gives notice to Receiving Parties that certain inadvertently 6 || produced material is subject to a claim of privilege or other protection, the obligations of the 7 || Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 8 || provision is not intended to modify whatever procedure may be established in an e-discovery 9 || order that provides for production without prior privilege review. Pursuant to Federal Rule of 10 || Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of 11 || acommunication or information covered by the attorney-client privilege or work product 12 || protection, the parties may incorporate their agreement in the stipulated protective order 13 |} submitted to the court. 14] 12. MISCELLANEOUS 15 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 16 || seek its modification by the court in the future. 17 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 18 || Order no Party waives any right it otherwise would have to object to disclosing or producing 19 || any information or item on any ground not addressed in this Stipulated Protective Order. 20 || Similarly, no Party waives any right to object on any ground to use in evidence of any of the 21 || material covered by this Protective Order. 22 12.3. Filing Protected Material. Without written permission from the Designating 23 || Party or a court order secured after appropriate notice to all interested persons, a Party may not 24 || file in the public record in this action any Protected Material. A Party that seeks to file under 25 || seal any Protected Material must comply with the Civil Local Rules of this Court. Protected 26 || Material may only be filed under seal pursuant to a court order authorizing the sealing of the 27 || specific Protected Material at issue. A sealing order will issue only upon a request establishing 28 || that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise -14- STIPULATION FOR PROTECTIVE ORDER 1 || entitled to protection under the law. If a Receiving Party's request to file Protected Material 2 || under seal is denied by the court, then the Receiving Party may file the information in the public 3 || record unless otherwise instructed by the court. 4] 13. FINAL DISPOSITION 5 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 6 || Receiving Party must return all Protected Material to the Producing Party or destroy such 7 || material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 8 || compilations, summaries, and any other format reproducing or capturing any of the Protected 9 || Material. To the extent that Protected Material has been loaded into a litigation review database 10 || under the control of the Receiving Party, the Receiving Party shall have all electronic copies of 11 }} information marked “CONFIDENTIAL” extracted and deleted from the database or otherwise 12 || destroyed. Where copies of Protected Material cannot be destroyed or separated, they shall not 13 || be reviewed, disclosed, or otherwise used by the Receiving Party. Whether the Protected 14 || Material is returned, deleted or destroyed, the Receiving Party must submit a written 15 || certification to the Producing Party (and, if not the same person or entity, to the Designating 16 || Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all the 17 || Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 18 || not retained any copies, abstracts, compilations, summaries or any other format reproducing or 19 || capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 20 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 21 || legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 22 || product, and consultant and expert work product, even if such materials contain Protected 23 || Material. Any such archival copies that contain or constitute Protected Material remain subject 24 || to this Protective Order as set forth in Section 4 (DURATION). 25 26 27 28 & HARRISON -15- STIPULATION FOR PROTECTIVE ORDER 1 || ITISSO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 Dated: December 18, 2019 Respectfully submitted, 4 BROCK & GONZALES LLP 5 By: /s/ Lindsay L. Bowden Timothy J. Gonzales 6 Christopher P. Brandes Lindsay Bowden 7 Attorneys for Plaintiff JEROME CHAN 9 10 Dated: December 19, 2019 Respectfully submitted, i FORD & HARRISON LLP 12 By: /s/ Timothy L. Reed 13 Ross A. Boughton Timothy L. Reed 14 Dan R. Lyman Attorneys for Defendant 15 WALMART INC. (erroneously sued as WAL-MART STORES, INC.) 16 17 ORDER 18 19 The Court has reviewed the parties’ stipulated protective order, and GRANTS the request subject to the following authorities and exceptions. Primarily, the Court notes that the parties have not provided sufficient information on 9 which the Court can make its findings required by Ninth Circuit precedent and the Court’s Local 74 Rules. Generally, the public can gain access to litigation documents and information produced during discovery unless the party opposing disclosure shows ‘good cause’ why a protective order is necessary.” Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th 06 Cir. 2002). “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips ex rel. Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); see also Makar-Wellbon v. Sony & HARRISON - 16- STIPULATION FOR PROTECTIVE ORDER 1 || Elecs., Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good 2 || cause showing). 3 The Ninth Circuit has recognized that the parties need not list the specific discovery 4 || documents in their stipulation, “given the onerous burden document review entails.” Foltz v. 5 || State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 (9th Cir. 2003). However, this and other 6 || authorities have recognized that blanket protective orders pose problems, both for the parties and 7 || for the court(s). See Id. (“[T]he blanket order makes appellate review difficult now that an 8 || intervenor is questioning the propriety of the original order.”); see also Oracle USA, Inc. v. 9 || Rimini St., Inc., 2012 WL 6100306, at *10 (D. Nev. Dec. 7, 2012) (“When a party or non-party 10 || producing or disclosing materials in discovery has not met its burden under Rule 26(c) that the 11 || discovery materials are entitled to protection from disclosure, a stipulated protective order is 12 || inherently subject to challenge and modification.” (citing San Jose Mercury News, Inc. v. United 13 }| States District Court—Northern District, 187 F.3d 1096, 1103 (9th Cir. 1999); Beckman Indus., 14 || Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). Thus, in this Circuit, “[b]road 15 || allegations of harm, unsubstantiated by specific examples or articulated reasoning do not satisfy 16 |] the Rule 26(c) test.” Foltz, 331 F.3d at 1130. 17 In order to strike balance between the onerous burden of listing each document and the 18 || likely—insufficient power of blanket protective orders, the Court’s Local Rules instruct the parties, 19 || when requesting a protective order, to include in their submission: 20 (1) A description of the types of information eligible for protection under the 1 order, with the description provided in general terms sufficient to reveal the nature of the information (e.g., customer list, formula for soda, diary of a 22 troubled child); 23 (2) A showing of particularized need for protection as to each category of information proposed to be covered by the order; and 24 (3) A showing as to why the need for protection should be addressed by a court 25 order, as opposed to a private agreement between or among the parties. 26 || Local Rule 141.1(c). 27 /// 28 & HARRISON -17- STIPULATION FOR PROTECTIVE ORDER 1 Here, the Court notes that the parties have agreed to a protective order that, depending on 2 || the specific documents at issue, may not withstand any later challenge from a party or potential 3 || intervenor. In the stipulation above, the parties state the purpose of the sought—after protection is 4 || to protect “confidential, proprietary, or private information for which special protection from 5 || public disclosure and from use for any purpose other than prosecuting this litigation... .” The 6 || parties list as confidential information or items “information (regardless of how it is generated, 7 || stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil 8 || Procedure 26(c).” Nowhere else in the stipulation does the Court see what “types of information” 9 || the parties intend to keep confidential, much less what the particularized need is or why the Court 10 }| is needed. See L.R. 141.1(c). 11 Further, the Court notes that under “duration,” the parties have stipulated to enforcement 12 || of the protection “[e]ven after final disposition of this litigation.” However, the Local Rules 13 || indicate that once this action is closed, “unless otherwise ordered, the Court will not retain 14 }] jurisdiction over enforcement of the terms of any protective order filed in that action.” L.R. 15 || 141.1(f). Courts in the district generally do not agree to retain jurisdiction after closure of the 16 || case, and the Court will not do so here. See, e.g., MD Helicopters, Inc. v. Aerometals, Inc., 2017 17 || WL 495778 (E.D. Cal., February 03, 2017). 18 Despite these inadequacies, the court approves the parties’ protective in order to facilitate 19 || the exchange of discovery. Counsel of record should take note of the above authorities for future 20 || proceedings. 21 IT IS SO ORDERED. 22 || Dated: December 30, 2019 3 Aectl Aharon 24 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 25 SD, chan.2460 26 27 28 & HARRISON - 18- STIPULATION FOR PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, [print or type full name], of 4 || [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 || understand the Stipulated Protective Order that was issued by the United States District Court 6 || for the Eastern District of California on [date] in the case of Jerome Chan v. Wal-Mart Stores, 7 || Inc., et al., U.S.D.C. Eastern District of California Case No. 2:19-CV-00506-TLN-KJN. I agree 8 || to comply with and to be bound by all the terms of this Stipulated Protective Order and I 9 || understand and acknowledge that failure to so comply could expose me to sanctions and 10 || punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner 11 || any information or item that is subject to this Stipulated Protective Order to any person or entity 12 || except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 || Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 || Order, even if such enforcement proceedings occur after termination of this action. 16 Thereby appoint [print or type full name] of 17 [print or type full address and telephone 18 |} number] as my California agent for service of process in connection with this action or any 19 || proceedings related to enforcement of this Stipulated Protective Order. 20 Date: 21 City and State where sworn and signed: 22 Printed name: 23 Signature: 24 25 26 27 28 & HARRISON -19- STIPULATION FOR PROTECTIVE ORDER