Shaw v. The Vons Companies, Inc. ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Maria Shaw, Case No. 2:24-cv-00132-RFB-DJA 6 Plaintiff, 7 Order v. 8 The Vons Companies, Inc. and Safeway, Inc., 9 Defendants. 10 11 Before the Court is Defendants the Vons Companies, Inc. and Safeway, Inc.’s motion for 12 a blanket protective order governing the parties’ exchange of information. (ECF No. 13).1 The 13 parties disagree on whether a blanket protective order is necessary. And to the extent it is, the 14 parties disagree on certain provisions of the blanket protective order. Defendants have also 15 postponed responding to certain discovery pending the Court’s ruling on the language of the 16 blanket protective order. Plaintiff argues in her response that the Court should compel 17 Defendants to produce their responses and responsive documents. Because the Court finds that a 18 blanket protective order is appropriate in this case, it grants Defendants’ motion for one. It will 19 further require that the parties meet and confer and submit a stipulated blanket protective order 20 with the language the Court specifies in this order. 21 I. Legal standard. 22 Federal Rule of Civil Procedure 26(c) governs protective orders. Fed. R. Civ. P. 26(c). It 23 provides that the “[t]he court may, for good cause, issue an order to protect a party or person from 24 25 1 In her response, Plaintiff includes a section titled “countermotion to compel.” (ECF No. 14 at 26 11). However, Plaintiff has not filed her response as a separate motion to compel as required by 27 Local Rule IC 2-2(b), so it is not properly before the Court as a motion. But even if it were, it would be mooted by the fact that Defendants are withholding the information only until the Court 1 annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). 2 There are three types of protective orders in federal practice. Federal Deposit Insurance 3 Corporation v. Lewis, No. 2:10-cv-439-JCM-VCF, 2015 WL 13667215, at *1 (D. Nev. July 29, 4 2015). The first—protective orders—protect a person from producing information in response to 5 a discovery request. See, e.g., Fed. R. Civ. P. 26(b)(2), (c)(1)(A), (c)(1)(C)-(E). The second— 6 sealing orders—protect a person’s privacy interests by preventing the public from accessing court 7 records. See, e.g., Fed. R. Civ. P. 26(c)(1)(F)-(H). The third—blanket protective orders—are 8 (typically) stipulated agreements between the parties that generally require discovery to be 9 conducted in a certain manner or be kept confidential. See, e.g., Fed. R. Civ. P. 26(c)(1)(B). 10 Rule 26(c) requires the moving party to make a “particularized showing” of Rule 11 26(c)(1)’s enumerated harms. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1138 12 (9th Cir. 2003); see Fed. R. Civ. P. 26(c). However, because protective orders, sealing orders, 13 and blanket protective orders serve different purposes, the nature of the “particularized showing” 14 that is required to obtain each order necessarily differs. Federal Deposit Insurance Corporation, 15 2015 WL 13667215, at *1. So, a party cannot successfully oppose the entry of a blanket 16 protective order by raising concerns about the public’s right of access to judicial records or 17 unsubstantiated fears that the party seeking the protective order is trying to avoid discovery. 18 Concerns about the public’s right of access to judicial records are unsuccessful to oppose 19 a blanket protective order because reliance on a blanket protective order does not justify the 20 sealing of a court document. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1183 21 (9th Cir. 2006). A blanket protective order governs discovery, which occurs out of court. 22 Federal Deposit Insurance Corporation, 2015 WL 13667215, at *1. The public has no right to 23 demand access to discovery materials that are solely in the hands of private party litigants. Id. 24 Unsubstantiated concerns that the party seeking the protective order is trying to avoid 25 discovery are also unsuccessful to oppose a blanket protective order. Blanket protective orders 26 are designed to expedite the discovery process by permitting litigants to freely exchange sensitive 27 information without the risk of disclosure. See id. These orders are intended to facilitate the 1 document is confidential or that a document’s disclosure would cause harm. See Small v. 2 University Medical Center of Southern Nevada, No. 2:13-cv-00298-APG-PAL, 2015 WL 3 1281549, at *3 (D. Nev. March 20, 2015). 4 II. Discussion. 5 As a preliminary matter, the Court finds that Defendants have shown good cause for a 6 blanket protective order to govern the exchange of confidential information in this case. 7 Defendants are not seeking to avoid responding to any particular discovery requests or to seal any 8 filed documents.2 So, the parties arguments regarding particularized harm are inapposite and the 9 Court does not consider them. Instead, the Court will address the parties’ disagreements 10 regarding the language to be included in the blanket protective order dispute-by-dispute. The 11 Court will require the parties to meet and confer and stipulate to a protective order containing the 12 language the Court references below. 13 A. Binding non-parties. 14 Defendants propose the following language regarding disclosure of confidential 15 information: 16 Only counsel of record in this Lawsuit shall be permitted to disseminate Confidential Material. Prior to disclosure of 17 Confidential Material, each person to whom disclosure is to be made 18 shall execute a written “Confidentiality Agreement” (in the form attached hereto as Exhibit “A”) consenting to be bound by the terms 19 of this Order…Upon dissemination of any Confidential Material, each non-designation counsel of record in this Lawsuit shall 20 maintain a written record as to: (1) the identity of any person given Confidential material, and (2) the identity of the Confidential 21 Material so disseminated (such as by “Bates stamp” number). Such 22 record shall be made available to the designating party upon request. 23 (ECF No. 13-3 at 3-4). 24 25 26 27 2 The Court notes that Defendants bring up specific discovery requests. But Defendants do not seek a protective order to prevent them from having to respond to these requests. Instead, they 1 Plaintiff takes issue with the language Defendants include providing that, if counsel for 2 any party shares confidential information with a third party, that third party must sign an 3 agreement to be bound by the terms of the protective order. (ECF No. 14 at 18). Plaintiff argues, 4 with no support, that “there is no basis for compelling non-parties to become parties to the 5 protective order.” (Id.). Plaintiff also disagrees with the language requiring the non-designating 6 attorney to keep a list of all the people to whom they have shown confidential information, 7 arguing that it “undermines the protections in place protecting the identity of consultants 8 employed in connection with the case.” (Id.). 9 The Court declines to remove this language from the protective order. Requirements in 10 protective orders that third parties who receive confidential information sign an agreement to 11 follow the terms of the protective order governing discovery in the case are common. See 12 Tomahawk Manufacturing, Inc. v. Spherical Industries, Inc., 344 F.R.D. 468, 471 (D. Nev. 2023) 13 (explaining that “blanket protective orders often include carveouts to enable experts or 14 consultants to access sensitive information upon agreeing to be bound by the terms of that blanket 15 protective order”) (emphasis added); see Satmodo, LLC v. Whenever Communications, LLC, No. 16 3:17-cv-00192-AJB-NLS, 2018 WL 1071707, at *7-10 (S.D. Cal. Feb. 27, 2018) (entering a 17 blanket protective order including an agreement to be bound to individuals, including professional 18 vendors and experts, to whom the parties disclose confidential information). However, to 19 alleviate Plaintiff’s concern regarding disclosing a list of consultants, the Court will require the 20 parties to add the following sentence to their stipulated protective order following the language 21 regarding maintaining a list of persons to whom counsel discloses confidential information: 22 If any party objects to disclosing their record of people to whom they have given or shown Confidential Material, the party objecting 23 to the disclosure may file the appropriate motion with the Court. 24 The parties’ stipulated protective order must include the language proposed by Defendants 25 and the sentence added by the Court above. 26 B. Return or destruction of confidential materials. 27 Defendants propose a provision that would require parties who have received confidential 1 conclusion of this matter. (ECF No. 13-3 at 7). Plaintiff asserts that the provision should be 2 removed so that both sides are allowed to retain documents that they are required to by law (for 3 example, Plaintiff’s counsel’s seven-year retention policy). (ECF No. 14 at 19). But it is not 4 clear that the provision Defendants propose would require Plaintiff’s counsel to destroy 5 information they are required to maintain by law. Indeed, Defendants’ proposed language 6 excludes “records regularly maintained by counsel in the ordinary course of business which 7 records will continue to be maintained as Confidential Documents in conformity with this order.” 8 (ECF No. 13-3 at 7). The Court finds no reason to remove this language and the parties must 9 include it in their stipulated protective order. 10 11 IT IS THEREFORE ORDERED that Defendants’ motion for a protective order (ECF 12 No. 13) is granted in part and denied in part. The Court grants Defendants’ request that the 13 Court find a protective order appropriate. The Court denies Defendants’ request that the Court 14 enter the exhibit they attach as the protective order. 15 IT IS FURTHER ORDERED that the parties must meet and confer and stipulate to a 16 protective order governing the exchange of discovery including the language outlined herein. 17 The parties must file their stipulated protective order on or before July 15, 2024. 18 19 DATED: June 14, 2024 20 DANIEL J. ALBREGTS 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27