Bradshaw v. Wal-Mart Associates, Inc. et al, No. 3:2023cv00593 - Document 13 (S.D. Cal. 2023)
Court Description: ORDER granting Joint Motion for Protective Order (ECF No. 11 ). Signed by Magistrate Judge Barbara Lynn Major on 06/01/2023. (cxl1)
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Bradshaw v. Wal-Mart Associates, Inc. et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ASHLEY BRADSHAW, an individual, Plaintiff, 12 13 14 15 v. WAL-MART ASSOCIATES, INC., a Delaware corporation; and DOES 1 through 20, inclusive, CASE NO. 3:23-CV-00593-TWR-BLM ORDER GRANTING JOINT MOTION FOR PROTECTIVE ORDER [ECF NO. 11] Defendants. 16 17 Plaintiff Ashley Bradshaw (“Plaintiff”) and Defendant Wal-Mart Associates, 18 Inc. (“Defendant”) (together, the “Parties”) have agreed to and have submitted to the 19 Court, and for good cause shown the Court hereby enters, the following Stipulated 20 Protective Order (“Order”): 21 1. This Order shall govern the disclosure of materials designated as 22 Confidential Material in this litigation. Confidential Material, as used in this Order, 23 shall refer to any document or item designated as Confidential or Highly Confidential 24 – Attorneys’ Eyes Only, including but not limited to, documents or items produced 25 during discovery, all copies thereof, and the information contained in such material. 26 Nothing in this Order shall require any party to produce any specific documents or 27 category of documents which a party deems inappropriate for production. 28 F ORD & H A R LLP CASE NO. 3:23-CV-00593-TWR-BLM -1- ATTORNEYS AT LOS ANGEL Dockets.Justia.com 1 2 3 Definitions of Confidential Material 2. Confidential Material, as used in this Order, consists of the following materials and categories of materials: 4 5 6 7 8 9 10 11 12 13 14 a. Materials relating to any privileged, confidential, or nonpublic information, including, but not limited to, trade secrets, research, design, development, financial, technical, marketing, planning, personal, or commercial information, as such terms are used in the Federal Rules of Civil Procedure (Fed. R. Civ.) and any applicable case law interpreting Fed. R. Civ. 26(c)(1)(G); contracts; non-public compilations of retail prices; proprietary information; vendor agreements; personnel files; claim/litigation information; and nonpublic policies and procedures shall be deemed Confidential. b. Materials containing corporate trade secrets, nonpublic research and development data, including, but not limited to, cost data, pricing formulas, inventory management programs, and other sales or business information not known to the public; information obtained from a nonparty pursuant to a non-disclosure agreement; and customer-related Protected Data shall be deemed Highly Confidential – Attorneys’ Eyes Only. 20 c. Protected Data shall refer to any information that a party believes in good faith to be subject to federal, state or foreign data protection laws or other privacy obligations. Examples of such data protection laws include but are not limited to The Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. (financial information); and, The Health Insurance Portability and Accountability Act and the regulations thereunder, 45 CFR Part 160 and Subparts A and E of Part 164 (medical information). Certain Protected Data may compel alternative or additional protections beyond those afforded Highly Confidential – Attorneys’ Eyes Only material, in which event the parties shall meet and confer in good faith, and, if unsuccessful, shall move the Court for appropriate relief. 21 The parties shall not designate as confidential information that is already public 22 knowledge. 15 16 17 18 19 23 3. The parties agree that such Confidential Material as described in 24 paragraph 2 should be given the protection of an order of this Court to prevent injury 25 through disclosure to persons other than those persons involved in the prosecution or 26 defense of this litigation. 27 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL CASE NO. 3:23-CV-00593-TWR-BLM -2- 1 2 Procedure for Designating Information as Confidential 4. To designate information as confidential, the producing party shall mark 3 Confidential Material with the legend “CONFIDENTIAL” or “HIGHLY 4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Parties shall submit 5 confidential discovery responses, such as answers to interrogatories or answers to 6 requests for admissions, in a separate document stamped with the appropriate legend 7 designating those responses as Confidential Material. The Receiving Party may make 8 copies of Confidential Material and such copies shall become subject to the same 9 protections as the Confidential Material from which those copies were made. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 a. Information on a disk or other electronic format (e.g., a native format production) may be designated confidential by marking the storage medium itself (or the native file’s title) with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The Receiving Party shall mark any hard-copy printouts and the storage medium of any permissible copies of such electronic material with the corresponding legend contained on the original and such copies shall become subject to the same protections, as the Confidential Material from which those copies were made. b. Information disclosed at any deposition of a party taken in this action may be designated by the party as confidential by indicating on the record at the deposition that the information is confidential and subject to the provisions of this Order. Alternatively, the party may designate information disclosed at the deposition as confidential by notifying the court reporter and other parties in writing, within fifteen (15) business days of receipt of the transcript, of the specific pages and lines of the transcript which are designated as confidential. The parties may agree to a reasonable extension of the 15-business-day period for designation. Designations of transcripts will apply to audio, video, or other recordings of the testimony. During such 15-business-day period, the entire transcript shall receive confidential treatment. Upon such designation, the court reporter and each party shall affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” legend to the designated pages and segregate them as appropriate. 5. A producing party may change the confidentiality designation of materials it has produced, as follows: (1) The producing party must give the receiving parties notice of the change by identifying the documents or information at issue. 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL CASE NO. 3:23-CV-00593-TWR-BLM -3- 1 Once notice is given, the receiving party must make good-faith efforts to ensure that 2 the documents or information are accorded treatment under the new designation. (2) 3 Within a reasonable period after giving notice, the producing party must reproduce 4 the documents or information in a format that contains the new designation. (3) If 5 such information has been disclosed to persons not qualified pursuant to paragraph(s) 6 (12-13) below, the party who disclosed such information shall (a) take reasonable 7 efforts to retrieve previously disclosed Confidential Material; (b) advise such persons 8 that the material is Confidential; and (c) give the producing party written assurance 9 that steps (a) and (b) have been completed. 10 11 Data Security 6. The Parties agree to provide adequate security to protect data produced 12 by the other party(ies) or by non-parties. This includes secure data storage systems, 13 established security policies, and security training for employees, contractors and 14 experts. Adequate security also includes such measures as data encryption in transit, 15 data encryption at rest, data access controls, and physical security, whether 16 hosted/outsourced to a vendor or on premises. At a minimum, any receiving party 17 subject to the terms of this Confidentiality Order, will provide reasonable measures 18 to protect non-client data consistent with the American Bar Association Standing 19 Committee on Ethics and Professional Responsibility, Formal Opinion 477R. 20 21 Clawback Provisions 7. The production of privileged or work-product protected documents, 22 electronically stored information (ESI) or information, whether inadvertent or 23 otherwise, is not a waiver of the privilege or protection from discovery in this case 24 or in any other federal or state proceeding. 25 8. This Order shall be interpreted to provide the maximum protection 26 allowed by Federal Rule of Evidence (FRE) 502(d) and shall be enforceable and 27 granted full faith and credit in all other state and federal proceedings by 28 U.S. Code 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL CASE NO. 3:23-CV-00593-TWR-BLM -4- 1 § 1738. In the event of any subsequent conflict of law, the law that is most protective 2 of privilege and work product shall apply. 3 9. Nothing contained herein is intended to or shall serve to limit a party’s 4 right to conduct a review of documents, ESI or information (including metadata) for 5 relevance, responsiveness and/or segregation of privileged and/or protected 6 information before production. 7 10. If the receiving party has reason to believe that a produced document or 8 other information may reasonably be subject to a claim of privilege, then the 9 receiving party shall immediately sequester the document or information, cease using 10 the document or information and cease using any work product containing the 11 information, and shall inform the producing party of the beginning BATES number 12 of the document or, if no BATES number is available, shall otherwise inform the 13 producing party of the information. 14 11. A producing party must give written notice to any receiving party 15 asserting a claim of privilege, work-product protection, or other ground for 16 reclaiming documents or information (a “clawback request”). After a clawback 17 request is received, the receiving party shall immediately sequester the document (if 18 not already sequestered) and shall not review or use that document, or any work 19 product containing information taken from that document, for any purpose. The 20 parties shall meet and confer regarding any clawback request. 21 22 Who May Receive Confidential and Highly Confidential Information 12. Confidential Material. Any Confidential Material and the information 23 contained therein shall be disclosed only to the Court, its staff, in-house counsel and 24 outside counsel of record for each party, and also shall be disclosed on a need-to- 25 know basis only to the parties, counsel’s staff personnel, employees of a party to 26 whom disclosure is necessary in connection with the preparation for and trial of this 27 action, and any witnesses in the case (including consulting and testifying experts) as 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL CASE NO. 3:23-CV-00593-TWR-BLM -5- 1 may from time to time reasonably be necessary in prosecution or defense of this 2 action. 3 information designated as “Highly Confidential—Attorneys’ Eyes Only” shall only 5 be disclosed to the Court, its staff, in-house and outside counsel of record for each 6 party, the secretarial, clerical, and paralegal staff of each, and consulting and 7 testifying experts retained by a party in this action. Restriction on Disclosure to Direct Competitors. Notwithstanding the foregoing, Confidential Material shall not be disclosed to any current or former 10 employees of, or current or former consultants, advisors, or agents of, a direct 11 competitor of any party named in the litigation. If a Receiving Party is in doubt about 12 whether a particular entity is a direct competitor of a party named in this lawsuit, then 13 before disclosing any Confidential Material to a current or former employee, 14 consultant, advisor, or agent of that entity, the Receiving Party’s counsel must confer 15 with counsel for the Producing Party. 15. Persons Receiving Confidential Information Must Sign Exhibit A. 17 Counsel for each party shall advise all persons to whom Confidential Material is 18 disclosed pursuant to this Order of the existence of this Order and shall provide all 19 such persons (other than the Court and its staff) with a copy of this Order. Counsel 20 shall also require such persons to execute the Affidavit attached as Exhibit A, prior 21 to the disclosure of Confidential Material. 22 LOS ANGEL 14. 9 16 ATTORNEYS AT Highly Confidential—Attorneys’ Eyes Only Material. Material and 4 8 F ORD & H A R LLP 13. 16. Duties in the Event of Unauthorized Disclosures. It shall be the 23 obligation of counsel, upon learning of any unauthorized disclosure or threatened 24 unauthorized disclosure of Confidential Information, or any other breach or 25 threatened breach of the provisions of this Order, to promptly notify counsel for the 26 Producing Party. The notification shall be supplemented with reasonable details of 27 the circumstances of the disclosure in order to permit the producing party to 28 understand and take appropriate steps. Each party and its counsel agree to take CASE NO. 3:23-CV-00593-TWR-BLM -6- 1 reasonable and good-faith efforts to contain or limit any breach promptly upon 2 receiving notice of it, and to make reasonable and good-faith attempts to retrieve any 3 unauthorized disclosure of documents or information. This provision does not limit 4 the producing party’s entitlement to damages resulting from any breach of this Order. 5 Authorized Uses of Confidential Material 6 7 8 17. Confidential Material shall only be used for the purpose of litigating the above-captioned lawsuit and may not be used in other lawsuits. 18. Persons having knowledge of Confidential Material and information 9 due to their participation in the conduct of this litigation shall use such knowledge 10 and information only as permitted herein, and shall not disclose such Confidential 11 Material, their contents or any portion or summary thereof to any person(s) not 12 involved in the conduct of this litigation. 13 19. If any person having access to the Confidential Material herein shall 14 maliciously violate this Order, he/she may be subject to sanctions by the Court and 15 may be liable to pay for the damages caused by his/her violation. 16 17 Challenges to the Designation of Confidential Material 20. Any party or interested member of the public may move the Court to 18 modify the designation of any documents or information produced in this litigation 19 (either to include additional protection with respect to confidentiality or to remove a 20 confidential designation). Before making such a motion, the party or an interested 21 member of the public shall first attempt to resolve such dispute with the producing 22 party’s counsel. 23 documents or information, the material at issue shall continue to be treated as 24 Confidential Material until ordered otherwise by the Court. The burden shall be on 25 the party seeking to modify the designation to show that the producing party’s 26 designation is inappropriate. Pending resolution of any challenges to the designation of 27 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL CASE NO. 3:23-CV-00593-TWR-BLM -7- 1 2 Withholding of Information 21. Non-relevant Attachments. The parties will not produce non-relevant 3 attachments that are attached to relevant emails. When an attachment is withheld, 4 either for privilege or non-responsiveness, the producing party shall produce a one- 5 page TIFF image (or PDF if production format dictates) in place of the withheld 6 attachment, 7 “Attachment Withheld-Nonresponsive”, and bearing a sequential BATES number 8 within the family BATES range. If any attachment to an email contains responsive 9 content, then the cover email shall be produced for context, regardless of the cover 10 email’s responsiveness. The cover email may be redacted in part to remove sensitive 11 information, as described below. 12 22. correspondingly stating “Attachment ATTORNEYS AT LOS ANGEL or Redactions. The parties may redact (1) information that is privileged or 13 protected from discovery as work product or by reason of any other applicable 14 privilege or immunity; (2) information subject to non-disclosure obligations imposed 15 by governmental authorities, law or regulation (e.g., protected personal information); 16 and (3) non-relevant sensitive information, including but not limited to personally 17 identifiable information, trade secrets, or information regarding products, data, or 18 people. 19 Privileged,” and all other redactions will state, “Redacted–Nonresponsive.” 20 Redactions of emails will not redact the names of recipients or the subject line of the 21 emails, unless the subject line is itself privileged or contains the sensitive information 22 described above, in which case only so much of the subject line will be redacted as 23 may be needed. The parties will produce redacted documents in TIFF format (or 24 searchable PDF if production format dictates; or in native format for file types that 25 do not convert well to TIFF/PDF, such as Excel files) with corresponding searchable 26 OCR text and the associated metadata for the document, ensuring the redacted 27 content is fully protected from disclosure. Privilege redactions will state, over the redacted portion, “Redacted– 28 F ORD & H A R LLP Withheld-Privileged” CASE NO. 3:23-CV-00593-TWR-BLM -8- 1 2 Confidential Material In Filings, Hearings, and Trial 23. Confidential Material in Filings. Without written permission from the 3 Producing Party or court order secured after appropriate notice to all interested 4 persons, a party may not file Confidential Material in the public record in this action 5 (or in any other action, such as an appeal). A party that seeks to file under seal any 6 Confidential Material must comply with the applicable Local Rules and federal case 7 law regarding filing materials under seal. Confidential Material may only be filed 8 under seal in a manner prescribed by the Court for such filings. 9 24. Filing Under Seal. Before any materials produced in discovery, answers 10 to interrogatories, responses to requests for admissions, deposition transcripts, or 11 other documents which are designated as Confidential Information are filed with the 12 Court for any purpose, the party seeking to file such material must seek permission 13 of the Court to file the material under seal. No document may be filed under seal, i.e., 14 closed to inspection by the public except pursuant to a Court order that authorizes the 15 sealing of the particular document, or portions of it. A sealing order may issue only 16 upon a showing that the information is privileged or protectable under the law. The 17 request must be narrowly tailored to seek sealing only of the confidential or 18 privileged material. To file a document under seal, the parties must comply with the 19 procedures explained in Section 2.j of the Electronic Case Filing Administrative 20 Policies and Procedures Manual for the United States District Court for the Southern 21 District of California and Civil Local Rule 79.2. In addition, in accordance with Judge 22 Major's preferences, a party must file a ‘public’ version of any document that it seeks 23 to file under seal. In the public version, the party may redact only that information 24 that is deemed ‘Confidential.’ The party should file the redacted document(s) 25 simultaneously with a joint motion or ex parte application requesting that the 26 confidential portions of the document(s) be filed under seal and setting forth good 27 cause for the request. 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL CASE NO. 3:23-CV-00593-TWR-BLM -9- 1 25. Confidential Material in Hearings and Trial. The provisions of this 2 Order shall not affect, and this Order does not limit, the admissibility of Confidential 3 Material (or references to that material) as evidence at trial, or during a hearing or 4 similar proceeding in this action. 5 information contained therein at any hearing that is open to the public, the party 6 seeking to use the Confidential Material must give at least five (5) days advance 7 notice to the producing party of the intent to use the Confidential Material so that the 8 producing party may seek an appropriate Court Order to protect the Confidential 9 Material. 10 11 Prior to using Confidential Material or the Continuing Effect of this Order and Duty to Destroy 26. This Order shall continue to be binding throughout and after the 12 conclusion of this litigation, including all appeals. Within thirty (30) days of 13 settlement or final adjudication, including the expiration or exhaustion of all rights 14 to appeal or petitions for extraordinary writs, each party or non-party to whom any 15 materials were produced shall, without further request or direction from the 16 Producing Party, promptly destroy all documents, items or data received including, 17 but not limited to, copies or summaries thereof, in the possession or control of any 18 expert or employee. This requirement to destroy includes all documents, not only 19 those documents designated as Confidential Material. The Receiving Party shall 20 submit a written certification to the Producing Party by the 30-day deadline that (1) 21 confirms the destruction/deletion of all Confidential Material, including any copies 22 of Confidential Materials provided to persons required to execute Exhibit A 23 (Affidavit), and (2) affirms the Receiving Party has not retained any copies, abstracts, 24 compilations, summaries or any other format reproducing or capturing any of the 25 Confidential Material. Notwithstanding this provision, outside counsel is entitled to 26 retain an archival copy of filings, depositions, and deposition exhibits. 27 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL CASE NO. 3:23-CV-00593-TWR-BLM - 10 - 1 2 LOS ANGEL If any person receiving documents covered by this Order is served with a subpoena, order, interrogatory, or document or civil investigative demand 4 (collectively, a “Demand”) issued in any other action, investigation, or proceeding, 5 and such Demand seeks material that was produced or designated as Confidential 6 Material by someone other than the Receiving Party, the Receiving Party shall give 7 prompt written notice by hand or electronic transmission within five (5) business 8 days of receipt of such Demand to the party or non-party who produced or designated 9 the material as Confidential Material, and shall object to the production of such 10 materials on the grounds of the existence of this Order. At the request of the party or 11 non-party who produced or designated the material as Confidential Material, the 12 Receiving Party shall refuse to comply with the Demand unless (a) ordered to do so 13 by a court with jurisdiction over the Receiving Party; or (b) released in writing by the 14 party or non-party who designated the material as Confidential Material. The burden 15 of opposing the enforcement of the Demand shall fall upon the party or non-party 16 who produced or designated the material as Confidential Material. Compliance by 17 the Receiving Party with any order of a court of competent jurisdiction, directing 18 production of any Confidential Material, shall not constitute a violation of this Order. 19 Application of this Order to Productions by Third Parties 28. This Order may be used by third parties producing documents in 21 connection with this action. Third parties may designate information as Confidential 22 or Highly Confidential – Attorneys’ Eyes Only. 23 ATTORNEYS AT 27. 3 20 F ORD & H A R LLP Procedure if Confidential Material Is Required to be Produced 29. If a third party produces (or intends to produce) documents and does not 24 designate (or does not intend to designate) those documents as Confidential Material, 25 then any party to this action may seek to designate that third party’s documents or 26 categories of documents as Confidential Material. In that case, it will be the burden 27 of the party seeking protected status to move for a court order designating the 28 materials as Confidential Material after the parties confer. CASE NO. 3:23-CV-00593-TWR-BLM - 11 - 1 30. In the event additional parties join or intervene in this litigation, the 2 newly joined party(ies) shall not have access to Confidential Material until its/their 3 counsel has executed and, at the request of any party, filed with the Court the 4 agreement of such party(ies) and such counsel to be fully bound by this Order. 5 31. The parties agree that nothing in this Order shall be deemed to limit the 6 extent to which counsel for the parties may advise or represent their respective 7 clients, conduct discovery, prepare for trial, present proof at trial, including any 8 document designated Confidential Material as set forth herein, or oppose the 9 production or admissibility of any information or documents which have been 10 requested. 11 32. Modification of the Order by the Court. The Court may modify the terms 12 and conditions of the Order for good cause, or in the interest of justice, or on its own 13 order at any time during these proceedings. 14 15 33. This Order shall remain in full force and effect until such time as it is modified, amended, or rescinded by the Court. 16 17 18 IT IS SO ORDERED. Dated: 6/1/2023 19 20 21 22 23 24 25 26 27 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL CASE NO. 3:23-CV-00593-TWR-BLM - 12 - 1 2 3 4 5 EXHIBIT A TO CONFIDENTIALITY ORDER 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 ASHLEY BRADSHAW, an individual, 10 11 12 13 CASE NO. 3:23-CV-00593-TWR-BLM Plaintiff, AFFIDAVIT OF COMPLIANCE WITH CONFIDENTIALITY ORDER v. WAL-MART ASSOCIATES, INC., a Delaware corporation; and DOES 1 through 20, inclusive, 14 Defendants. 15 16 17 AFFIDAVIT OF COMPLIANCE WITH CONFIDENTIALITY ORDER 18 19 20 21 1. My name is ___________________. I live at __________________________. I am working on behalf (or at the direction and engagement) of __________________________. 22 23 24 25 2. I am aware that a Confidentiality Order has been entered in the above- captioned lawsuit. A copy of this Confidentiality Order has been given to me, and I have read and understand the provisions of same. 26 27 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL 3. I acknowledge that documents and information designated as confidential and/or highly confidential pursuant to such Confidentiality Order CASE NO. 3:23-CV-00593-TWR-BLM - 13 - 1 (“Confidential Materials”) are being disclosed to me only upon the conditions that I 2 agree (a) to be subject to the jurisdiction of this Court, and (b) to comply with that 3 Order. I hereby agree to abide by such Order, subject to all penalties prescribed 4 therein, including contempt of Court, for disobedience of said Order. I promise that 5 the documents and information given confidential treatment under the 6 Confidentiality Order entered in this case will be used by me only to assist counsel 7 for the parties in preparing for litigation of the above-captioned matter. I understand 8 that any use of such Confidential Material in any manner contrary to the provisions 9 of the Confidentiality Order may subject me to the sanctions of this Court for 10 contempt and to liability for any damages caused by my breach of the Confidentiality 11 Order. 12 13 4. I shall not disclose nor permit to be reviewed or copied said Confidential 14 Materials, or any information derived from, by any person other than the parties and 15 counsel for the parties or members of their staff. 16 17 5. Within 30 days after the above-captioned lawsuit ends in a final non- appealable order, I agree to destroy all Confidential Materials in my possession. 18 19 Dated: 20 21 (Signature) 22 (Printed Named) 23 24 25 26 27 28 F ORD & H A R LLP ATTORNEYS AT LOS ANGEL CASE NO. 3:23-CV-00593-TWR-BLM - 14 -
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