Cavasos v. Wal-Mart Associates, Inc. ( 2023 )

1 HOWARD L. MAGEE, SBN 185199 hmagee@diversitylaw.com 2 MAX W. GAVRON, SBN 291697 mgavron@diversitylaw.com 3 DIVERSITY LAW GROUP, P.C. 515 S. Figueroa Street, Suite 1250 4 Los Angeles, CA 90071 Telephone: (213) 488-6555 5 Facsimile: (213) 488-6554 6 Attorneys for Plaintiff PETER CAVAZOS 7 JAMES T. CONLEY, SBN 224174 8 james.conley@ogletree.com HAIDY M. RIVERA, SBN 322117 9 haidy.rivera@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & 10 STEWART, P.C. 500 Capitol Mall, Suite 2500 11 Sacramento, CA 95814 Telephone: 916-840-3150 12 Facsimile: 916-840-3159 13 Attorneys for Defendant WAL-MART ASSOCIATES, INC. 14 UNITED STATE DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 PETER CAVAZOS, No. 2:22-cv-1455 JAM DB 18 Plaintiff, STIPULATION REGARDING 19 PRODUCTION OF CONFIDENTIAL vs. DOCUMENTS AND PROPRIETARY 20 INFORMATION; AND ORDER WAL-MART ASSOCIATES, INC., a Delaware 21 corporation; and DOES 1 through 50, inclusive, 22 Defendants. 23 24 25 IT IS HEREBY STIPULATED by and between Plaintiff PETER CAVAZOS (“Plaintiff”) 26 and Defendant WAL-MART ASSOCIATES, INC., (“Defendant”), through their respective 27 attorneys of record, that a Protective Order be entered by this Court as follows: 1 and exchange of all document requests and documents, interrogatories and answers to 2 interrogatories, depositions, request for admissions and responses to requests for admissions, 3 exhibits, pleadings, and all other information exchanged and furnished in this action by the parties 4 that are confidential and/or proprietary. 5 I. SCOPE 6 (a) The parties acknowledge that discovery will require disclosure of information that is 7 private and personal or confidential and proprietary, and may include personnel records, medical 8 records, personnel policies, employment offers, trade secrets, competitive analyses, income 9 statements, client or customer information, and financial records and statements, along with other 10 proprietary or confidential information. As a result, the parties agree that they will be required to 11 enter into a Protective Order on the following terms to ensure the continuing confidentiality of such 12 information. The parties further acknowledge that this Order does not confer blanket protections on 13 all disclosures or responses to discovery and that the protection it affords extends only to the limited 14 information or items that are entitled under the applicable legal principles to treatment as 15 confidential. 16 (b) This Protective Order shall limit the use or disclosure of documents, deposition 17 testimony, and related information which are or which embody or disclose any information 18 designated hereunder as “Confidential,” and shall apply to: 19 (i) All such documents, including those from third parties, so designated in 20 accordance with this Protective Order and legal standards and definitions, and all information 21 contained therein; 22 (ii) Portions of deposition testimony and transcripts and exhibits thereto which 23 include, refer to, or relate to any Confidential Information; 24 (iii) All information, copies, extracts, and complete or partial summaries prepared 25 or derived from Confidential Information; and 26 (iv) Portions of briefs, memoranda, or any writings filed with or otherwise 27 supplied to the Court, which include or refer to any such Confidential Information. 1 hereunder asserts that he or she believes in good faith that such material is Confidential Information 2 which is not otherwise available to the public generally. Each party or non-party that designates 3 information or items for protection under this Order must take care to limit any such designation to 4 specific material that qualifies under the appropriate standards. A designating party must take care 5 to designate for protection only those parts of material, documents, items, or oral or written 6 communications that qualify so that other portions of the material, documents, items, or 7 communications for which protection is not warranted are not swept unjustifiably within the ambit 8 of this Order. 9 II. DESIGNATION OF DOCUMENTS AND DEPOSITIONS 10 (a) Designation of a document as “Confidential” shall be made by stamping or writing 11 CONFIDENTIAL on the document(s). The parties shall make every effort to designate as 12 CONFIDENTIAL only documents that contain information protected as confidential under 13 California law, including but not limited to, proprietary information, financial information, trade 14 secrets, personnel, medical and payroll information, or other similarly protected information. The 15 failure to so designate documents at the time of production shall not constitute a waiver of the 16 protection of this Order and any party may, at any time during the course of the action up to 30 days 17 before the actual trial date designate any documents or information produced as confidential that 18 have not as yet been so designated. 19 (b) Designation of a deposition or other pretrial testimony, or portions thereof, as 20 “Confidential” shall be made by a statement on the record by counsel for the party or other person 21 making the claim of confidentiality at the time of such testimony. The portions of depositions so 22 designated as “Confidential” shall be taken only in the presence of persons qualified to receive such 23 information pursuant to the terms of this Protective Order: the parties and their attorneys and staff, 24 the court reporter, the deponent, and the deponent’s attorney. Failure of any other person to comply 25 with a request to leave the deposition room will constitute sufficient justification for the witness to 26 refuse to answer any question calling for disclosure of Confidential Information so long as persons 27 not entitled by this Protective Order to have access to such information are in attendance. The parties 1 designated as “Confidential.” Portions of such deposition transcripts shall be clearly marked as 2 “Confidential” on the cover or on each page, as appropriate. 3 (c) Any party may designate documents produced or portions of depositions taken as 4 containing Confidential Information even if not initially marked as “Confidential” in accordance 5 with the terms of this Protective Order by so advising counsel for each other party in writing and by 6 reproducing said documents with the required confidential designation. Thereafter each such 7 document or transcript shall be treated in accordance with the terms of this Protective Order; 8 provided, however, that there shall be no liability for any disclosure or use of such documents or 9 transcripts, or the Confidential Information contained therein, which occurred prior to actual receipt 10 of such written notice. Any person who receives actual notice of any such designation of previously 11 produced documents or deposition transcripts as containing Confidential Information shall thereafter 12 treat such information as if it had been designated as “Confidential” at the time he, she, or it first 13 received it in connection with this matter. 14 (d) Inadvertent failure to designate Confidential Information shall not be construed as a 15 waiver, in whole or in part, and may be corrected by the producing party designating document 16 produced or portions of depositions taken as containing Confidential Information even if not initially 17 marked as “Confidential” in accordance with the terms of this Protective Order and, specifically, 18 Paragraph 2, subsection (c), above. 19 III. LIMITATIONS ON DISCLOSURE OF CONFIDENTIAL INFORMATION 20 (a) No Confidential Information shall be disclosed by anyone receiving such information 21 to anyone other than those persons designated herein and in no event shall Confidential Information 22 be used, either directly or indirectly, by anyone receiving such information for any business, 23 commercial or competitive purpose or for any purpose whatsoever other than the direct furtherance 24 of the litigation of this action in accordance with the provisions of this Protective Order. 25 (b) Confidential Information shall not be disclosed by any person who has received such 26 information through discovery in this action to any other person except to: 27 (i) The parties hereto; 1 employees involved in the conduct of this litigation; 2 (iii) In-house counsel for Defendant, its subsidiaries, and/or its affiliates; 3 (iv) Non-party experts and consultants engaged by counsel for the purpose of 4 preparing or assisting in this litigation, and their respective clerks and employees involved in 5 assisting them in this litigation, to the extent deemed necessary by counsel; 6 (v) The Court, its officers, court reporters, and similar personnel, provided further 7 that Confidential Information lodged with the Court under seal is subject to further evaluation by the 8 Court; and 9 (vi) Any person as to which it is apparent from the face of a document was either 10 an author, recipient, had knowledge of the contents therein, or was otherwise entitled to view the 11 Confidential Information prior to the intended disclosure in this action. 12 (c) Before any person described in Paragraph 3, subsection (b)(iv), receives or is shown 13 any document or information which has been designated as Confidential, such person shall be given 14 a copy of this Protective Order and shall agree in writing, in the form of the Acknowledgment and 15 Agreement attached hereto as Exhibit A, to be bound by the terms hereof. The original of each such 16 Acknowledgment and Agreement shall be maintained by counsel and shall be produced for 17 inspection by opposing counsel upon request. Any counsel may require the other counsel to provide 18 a copy of the Acknowledgment and Agreement signed by a witness at a deposition before the witness 19 is deposed with regard to any Confidential Information. 20 (d) Nothing in this Protective Order shall be construed to require execution of the written 21 Acknowledgment and Agreement referred to in Paragraph 3, subsection (c), above, or to prevent 22 disclosure of Confidential Information, by the party producing and designating such Confidential 23 Information, or by any employee of such party. 24 (e) The substance or content of Confidential Information, as well as all notes and 25 memoranda relating thereto, shall not be disclosed to anyone other than as set forth in Paragraph 3, 26 subsections (b)(i)–(b)(vi), above. 27 IV. FILING DOCUMENTS UNDER SEAL 1 CONFIDENTIAL or which contains Confidential Information and which has not been successfully 2 challenged under Paragraph 5 below, the submitting Party shall notify the Party designating the 3 document as CONFIDENTIAL prior to submitting any CONFIDENTIAL documents to the Court 4 so as to provide the designating Party sufficient time to determine whether it needs to file a 5 Request to Seal Documents under Local Rule 141. If the designating Party decides to move to seal 6 the CONFIDENTIAL documents, the Party seeking to seal the CONFIDENTIAL documents must 7 comply with the procedures set forth in Local Rule 141 and must also comply with Federal Rules 8 of Civil Procedure 26(c)(1). To the extent permitted by Local Rule 140, all Confidential 9 Information filed with the Court and any pleading or other paper containing Confidential 10 Information filed with the Court shall be redacted so that they do not disclose the contents of the 11 Confidential Information that is subject to the Protective Order. 12 (b) Any party requesting that a record be filed under seal must comply with Local Rule 13 141. The Parties agree and recognize that Confidential Information or any paper containing 14 Confidential Information cannot be filed under seal based solely upon this stipulated Protective 15 Order. 16 V. CHALLENGE TO CONFIDENTIALITY DESIGNATION 17 Any party that wishes to challenge the designation of a document or other information as 18 “Confidential” may, for good cause, bring a motion before the Court requesting that the Court deny 19 the designation of any document or information as “Confidential.” The interested parties or other 20 persons shall attempt to resolve such disagreements before submitting them to the Court. Pending 21 resolution of any dispute concerning such designation, all parties and persons governed by this 22 Protective Order shall treat all documents and information previously designated as “Confidential” 23 as protected from further disclosure by this Protective Order. 24 VI. SURVIVAL OF ORDER – RETURN OF DOCUMENTS 25 (a) The provisions of this Order shall continue in effect until otherwise ordered by the 26 Court, or one of them, after notice and an opportunity to be heard is afforded to the parties to this 27 action. The final determination or settlement of this action shall not relieve any person who has 1 her, or its obligations hereunder. The Court shall retain jurisdiction after such final determination or 2 settlement to enforce the provisions of this Order. Upon completion of the litigation, all documents 3 (including copies of documents) containing Confidential Information shall be destroyed or returned 4 to counsel for the producing party, except that (a) documents on which any person has made notations 5 may be destroyed and not returned, and (b) the parties’ respective attorneys of record may retain one 6 copy of each such document for use in connection with any disputes which may arise under the 7 Court’s retention of jurisdiction as provided for herein. 8 (b) Except as provided in Paragraph 4 or Paragraph 6, subsection (a), hereof, documents 9 or things containing the other party’s Confidential Information shall at all times be in the physical 10 possession of those persons qualifying under Paragraph 3 hereunder, or be kept by counsel of record 11 at the premises regularly maintained by such counsel of record as and for their respective law offices. 12 VII. USE OF DOCUMENTS AT TRIAL 13 This Stipulation and Protective Order, except as provided in Paragraph 4, above, shall not 14 apply to information designated or marked “Confidential” hereunder which is used at any evidentiary 15 hearing or trial in this action. The parties hereby reserve their rights to use, or seek to limit the 16 disclosure of, Confidential Information at any such hearing or trial. 17 VIII. USE OF OWN DOCUMENTS 18 Nothing in this Protective Order shall limit the use by any party, person, or entity of his, her, 19 or its own document or information for legitimate business purposes unrelated to this litigation, even 20 if such documents or information have been designated as “Confidential.” 21 IX. APPLICATIONS TO COURT 22 (a) This Protective Order shall not preclude or limit any party’s right to oppose or object 23 to discovery on any ground which would be otherwise available. This Protective Order shall not 24 preclude or limit any party’s right to seek in camera review or to seek further and additional 25 protection against or limitation upon production or dissemination of information produced in 26 response to discovery, including documents and their contents. 27 (b) Any person to or by whom disclosure or inspection is made in violation of this 1 hereof. 2 (c) The parties hereto, and all other persons who receive Confidential Information 3 pursuant hereto, agree that any party or other person injured by a violation of this Order does not 4 have an adequate remedy at law and that an injunction against such violation is an appropriate 5 remedy. In the event any person shall violate or threaten to violate any terms of this Order, the parties 6 agree that the aggrieved party may immediately apply to obtain injunctive relief against any such 7 person. In the event the aggrieved party shall do so, the respondent person subject to the provisions 8 of this Order shall not employ as a defense thereto the claim that the aggrieved party has an adequate 9 remedy at law. Any persons subject to the terms of this Order agree that the Court shall retain 10 jurisdiction over it and them for the purposes of enforcing this Order, including but not limited to 11 issuing an injunction. In addition to injunctive relief, as specified herein, the Court may impose 12 monetary and/or issue sanctions, as well as other relief deemed appropriate under the circumstances 13 for a violation of this Protective Order. 14 (d) If any deponent required under the terms of this Protective Order to execute the 15 written Acknowledgment and Agreement described in Paragraph 3, subsection (c), above, refuses to 16 do so, the parties may complete the deposition on other matters or adjourn it and move the Court for 17 any appropriate relief, including (without limitation) relief from this Protective Order as to that 18 deponent, or an order that the deponent shall execute the written agreement described in Paragraph 19 3, subsection (c), above, or an order that deponent shall be bound by the terms of this Protective 20 Order. Any non-party whose Confidential Information is the subject of such a motion shall be given 21 notice thereof. 22 X. AGREEMENT TO COOPERATE 23 The parties hereto and their respective attorneys of record agree that, when one party’s 24 attorney requests a deponent to sign the written Acknowledgment and Agreement described in 25 Paragraph 3, subsection (c), above, the other party’s attorney will join in such request, unless that 26 attorney has a good faith basis for refusing to join in such a request; provided, however, that this 27 requirement shall not apply with respect to any deponent who is represented at his or her deposition 1 law firms). An attorney’s request to sign such Acknowledgment pursuant to this Paragraph shall not 2 be construed to constitute legal advice to the deponent, but shall and may be stated to be simply a 3 request to facilitate discovery in this action. 4 XI. NO ADMISSIONS 5 Neither entering into this Stipulation for Protective Order, nor receiving any documents or 6 other information designated as “Confidential,” shall be construed as an agreement or admission (1) 7 that any document or information designated as “Confidential” is in fact Confidential Information; 8 (2) as to the correctness or truth of any allegation made or position taken relative to any matter 9 designated as “Confidential”; or (3) as to the authenticity, competency, relevancy, or materiality of 10 any information or document designated as “Confidential.” 11 XII. NO WAIVER OF PRIVILEGES OR OBJECTIONS TO ADMISSIBILITY 12 Nothing in this Protective Order shall be construed as requiring disclosure of Confidential 13 Information, including, but not limited to, materials subject to protection under the attorney-client 14 privilege and/or the attorney work-product doctrine, the trade secrets privilege, or any other 15 applicable privileges or rights of privacy, or requiring disclosure of Confidential Information that is 16 otherwise beyond the scope of permissible discovery. Further, nothing in this Protective Order shall 17 be construed as a waiver by a party of any objections that might be raised as to the admissibility at 18 trial of any evidentiary materials. 19 XIII. DISCLOSURE IN VIOLATION OF ORDER 20 If any Confidential Information is disclosed to any person other than in the manner authorized 21 by this Protective Order, the party responsible for the disclosure must immediately in writing notify 22 the opposing party and the designating party of all pertinent facts relating to such disclosure to the 23 attention of, and without prejudice to the rights and remedies of the designating party, make every 24 effort to prevent further unauthorized disclosure on its own part or on the part of the recipient of such 25 Confidential Information. 26 XIV. MODIFICATION – FURTHER AGREEMENTS 27 Nothing contained herein shall preclude any party from seeking from the Court, modification 1 other written agreements designed to protect Confidential Information. 2 XV. COUNTERPARTS 3 This Stipulation for Protective Order may be executed in counterparts, each of which shall 4 be deemed an original, and which together shall constitute one instrument. 5 6 DATED: March 28, 2023 DIVERSITY LAW GROUP, APC 7 8 By: /s/ Max W. Gavron Howard L. Magee 9 Max W. Gavron 10 Attorneys for Plaintiff PETER CAVAZOS 11 DATED: March 29, 2023 OGLETREE, DEAKINS, NASH, 12 SMOAK & STEWART, P.C. 13 14 By: /s/ Haidy M. Rivera James T. Conley 15 Haidy M. Rivera 16 Attorneys for Defendant WAL-MART ASSOCIATES, INC. 17 18 19 20 21 22 23 24 25 26 27 1 ORDER 2 IT IS HEREBY ORDERED that the parties’ stipulation is granted. 3 IT IS FURTHER ORDERED THAT: 4 1. Requests to seal documents shall be made by motion before the same judge who will 5 decide the matter related to that request to seal. 6 2. The designation of documents (including transcripts of testimony) as confidential 7 pursuant to this order does not automatically entitle the parties to file such a document with the 8 court under seal. Parties are advised that any request to seal documents in this district is governed 9 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 10 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 11 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 12 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 13 the requested duration, the identity, by name or category, of persons to be permitted access to the 14 document, and all relevant information.” L.R. 141(b). 15 3. A request to seal material must normally meet the high threshold of showing that 16 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially 17 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 18 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana 19 v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 20 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of 21 certain documents, at any court hearing or trial – such determinations will only be made by the 22 court at the hearing or trial, or upon an appropriate motion. 23 5. With respect to motions regarding any disputes concerning this protective order which 24 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 25 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex parte 26 basis or on shortened time. 27 //// 1 6. The parties may not modify the terms of this Protective Order without the court’s 2 approval. If the parties agree to a potential modification, they shall submit a stipulation and 3 proposed order for the court’s consideration. 4 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement 5 of the terms of this Protective Order after the action is terminated. 6 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 7 hereby DISAPPROVED. 8 DATED: March 31, 2023 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 EXHIBIT A 2 ACKNOWLEDGMENT OF RECEIPT OF PROTECTIVE ORDER REGARDING 3 CONFIDENTIAL INFORMATION AND AGREEMENT TO BE BOUND THEREBY 4 I hereby acknowledge receipt of and that I have read a copy of the Stipulation for Protective 5 Order and Order (the “Order”), which I understand was made on _________________, 2023, in the 6 action entitled Peter Cavazos v. Wal-Mart Associates, Inc., et al., Case No. 2:22-cv-01455-JAM- 7 DB, USDC, Eastern District of California. I agree that I will be bound by the provisions of the 8 Order with respect to any Confidential Information provided to me under the terms thereof. I agree 9 that, if I receive any Confidential Information, I will not make any copies thereof nor disclose such 10 Confidential Information except as permitted by the Order. I further understand that if I fail to 11 comply with the terms of the Order, I may be subject to sanctions by the Court, and I hereby 12 consent to personal jurisdiction in the State of California with respect to any matter relating to or 13 arising out of the Order. 14 Executed this _____day of ________, 2023, at __________________, _____. 15 16 _____________________________ 17 18 19 Name: ________________________________________ 20 Affiliation: ________________________________________ 21 Address: ________________________________________ 22 ________________________________________ 23 24 53987721.v1-OGLETREE 25 26 27