Diamond v. Walmart Inc.

Opinion

1 CE-hmerayill: J ochjonhsnosno-Hn-ahratwrtwelel l(lS@BbNw 2sl2a1w0.6c3o)m 2 Paloma P. Peracchio (SBN 259034) E-mail: pperacchio@bwslaw.com 3 Lindsay M. Samuel (SBN 320075) E-mail: lsamuel@bwslaw.com 444 South Flower Street, Suite 2400 5 Los Angeles, CA 90071-2953 Tel: 213.236.0600 Fax: 213.236.2700 6 Attorneys for Defendant WALMART INC. 7 Donald Potter (SBN 192735) 8 dp@donpotterlaw.com 690 East Green Street, Suite 102 10 Pasadena, California 91101 11 Telephone: 626.744.1555 Facsimile: 626.389.0592 12

13 Attorneys for Plaintiff, DERRIK DIAMOND, an individual 14 17 DERRIK DIAMOND, an individual, Case No. 1:19-cv-00857-LJO-JLT 18 Plaintiff, 19 v. STIPULATED PROTECTIVE 20 ORDER WALMART INC., a corporation, 21 and DOES 1 to 20, inclusive

22 Defendant. 23

24 /// 25 /// 26 /// 27 /// 28 1 1. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. 11 12 2. GOOD CAUSE STATEMENT 13 This action is likely to involve commercial, financial, and/or proprietary 14 information for which special protection from public disclosure and from use for 15 any purpose other than prosecution of this action is warranted. Such confidential 16 and proprietary materials and information consist of, among other things, 17 confidential business or financial information, information regarding confidential 18 business practices, or other confidential research, development, or commercial 19 information (including information implicating privacy rights of third parties), 20 information otherwise generally unavailable to the public, or which may be 21 privileged or otherwise protected from disclosure under state or federal statutes, 22 court rules, case decisions, or common law. Accordingly, to expedite the flow of 23 information, to facilitate the prompt resolution of disputes over confidentiality of 24 discovery materials, to adequately protect information the parties are entitled to 25 keep confidential, to ensure that the parties are permitted reasonable necessary uses 26 of such material in preparation for and in the conduct of trial, to address their 27 handling at the end of the litigation, and serve the ends of justice, a protective order 28 for such information is justified in this matter. It is the intent of the parties that 1 information will not be designated as confidential for tactical reasons and that 2 nothing be so designated without a good faith belief that it has been maintained in a 3 confidential, non-public manner, and there is good cause why it should not be part 4 of the public record of this case. 5 6 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 7 The parties further acknowledge, as set forth in Section 14.3, below, that this 8 Stipulated Protective Order does not entitle them to file confidential information 9 under seal; Civil Local Rule 141 sets forth the procedures that must be followed 10 and the standards that will be applied when a party seeks permission from the court 11 to file material under seal. There is a strong presumption that the public has a right 12 of access to judicial proceedings and records in civil cases. In connection with non- 13 dispositive motions, good cause must be shown to support a filing under seal. See 14 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 15 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 16 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 17 stipulated protective orders require good cause showing), and a specific showing of 18 good cause or compelling reasons with proper evidentiary support and legal 19 justification, must be made with respect to Protected Material that a party seeks to 20 file under seal. The parties’ mere designation of Disclosure or Discovery Material 21 as CONFIDENTIAL does not— without the submission of competent evidence by 22 declaration, establishing that the material sought to be filed under seal qualifies as 23 confidential, privileged, or otherwise protectable—constitute good cause. 24 Further, if a party requests sealing related to a dispositive motion or trial, 25 then compelling reasons, not only good cause, for the sealing must be shown, and 26 the relief sought shall be narrowly tailored to serve the specific interest to be 27 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 28 2010). For each item or type of information, document, or thing sought to be filed 1 or introduced under seal, the party seeking protection must articulate compelling 2 reasons, supported by specific facts and legal justification, for the requested sealing 3 order. Again, competent evidence supporting the application to file documents 4 under seal must be provided by declaration. Any document that is not confidential, 5 privileged, or otherwise protectable in its entirety will not be filed under seal if the 6 confidential portions can be redacted. If documents can be redacted, then a redacted 7 version for public viewing, omitting only the confidential, privileged, or otherwise 8 protectable portions of the document, shall be filed. Any application that seeks to 9 file documents under seal in their entirety should include an explanation of why 10 redaction is not feasible. 11 12 4. DEFINITIONS 13 4.1 Action: refers to the Complaint for Damages filed by Plaintiff against 14 Walmart Inc. on May 13, 2019 in the Superior Court of California, County of Kern, 15 Case No. BCV-19-101292, and subsequently removed to the United States District 16 Court for the Eastern District of California, Case No. 1:19-cv-00857-LJO-JLT. 17 4.2 Challenging Party: a Party or Non-Party that challenges the 18 designation of information or items under this Order. 19 4.3 “CONFIDENTIAL” Information or Items: Materialsor information 20 (including, but not limited to: contracts; non-public compilations of retail prices; 21 vendor agreements; materials containing nonpublic research and development data; 22 (including, but not limited to, ones containing cost data, pricing formulas, inventory 23 management programs, other sales or business information not known to the 24 public); information obtained from a non-party pursuant to a non-disclosure 25 agreement; and customer-related protected data) containing any privileged, 26 confidential, or nonpublic information, including, but not limited to, trade secrets, 27 research, design, development, financial, technical, marketing, planning, personal 28 information entitled to privacy, or commercial information if they qualify for 1 protection under Federal Rules of Civil Procedure and any applicable case law 2 interpreting those rules, and as specified above in the Good Cause Statement; 3 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as 4 their support staff). 5 4.5 Designating Party: a Party or Non-Party that designates information or 6 items that it produces in disclosures or in responses to discovery as 7 “CONFIDENTIAL.” 8 4.6 Disclosure or Discovery Material: all items or information, regardless 9 of the medium or manner in which it is generated, stored, or maintained (including, 10 among other things, testimony, transcripts, and tangible things), that are produced 11 or generated in disclosures or responses to discovery in this matter. 12 4.7 Expert: a person with specialized knowledge or experience in a matter 13 pertinent to the litigation who has been retained by a Party or its counsel to serve as 14 an expert witness or as a consultant in this Action. 15 4.8 House Counsel: attorneys who are employees of a party to this Action. 16 House Counsel does not include Outside Counsel of Record or any other outside 17 counsel. 18 4.9 Non-Party: any natural person, partnership, corporation, association, or 19 other legal entity not named as a Party to this action. 20 4.10 Outside Counsel of Record: attorneys who are not employees of a 21 party to this Action but are retained to represent or advise a party to this Action and 22 have appeared in this Action on behalf of that party or are affiliated with a law firm 23 which has appeared on behalf of that party, and includes support staff. 24 4.11 Party: any party to this Action, including all of its officers, directors, 25 employees, consultants, retained experts, and Outside Counsel of Record (and their 26 support staffs). 27 4.12 Producing Party: a Party or Non-Party that produces Disclosure or 28 Discovery Material in this Action. 1 4.13 Professional Vendors: persons or entities that provide litigation 2 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 3 demonstrations, and organizing, storing, or retrieving data in any form or medium) 4 and their employees and subcontractors. 5 4.14 Protected Material: any Disclosure or Discovery Material that is 6 designated as “CONFIDENTIAL.” 7 4.15 Receiving Party: a Party that receives Disclosure or Discovery 8 Material from a Producing Party. 9 10 5. SCOPE 11 The protections conferred by this Stipulation and Order cover not only 12 Protected Material (as defined above), but also (1) any information copied or 13 extracted from Protected Material; (2) all copies, excerpts, summaries, or 14 compilations of Protected Material; and (3) any testimony, conversations, or 15 presentations by Parties or their Counsel that might reveal Protected Material. 16 Any use of Protected Material at trial shall be governed by the orders of the 17 trial judge. This Order does not govern the use of Protected Material at trial. 18 19 6. DURATION 20 Once a case proceeds to trial, information that was designated as 21 CONFIDENTIAL or maintained pursuant to this protective order used or 22 introduced as an exhibit at trial becomes public and will be presumptively available 23 to all members of the public, including the press, unless compelling reasons 24 supported by specific factual findings to proceed otherwise are made to the trial 25 judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing 26 “good cause” showing for sealing documents produced in discovery from 27 “compelling reasons” standard when merits-related documents are part of court 28 record). Accordingly, the terms of this protective order do not extend beyond the 1 commencement of the trial. 2 3 7. DESIGNATING PROTECTED MATERIAL 4 7.1 Exercise of Restraint and Care in Designating Material for Protection. 5 Each Party or Non-Party that designates information or items for protection under 6 this Order must take care to limit any such designation to specific material that 7 qualifies under the appropriate standards. The Designating Party must designate for 8 protection only those parts of material, documents, items, or oral or written 9 communications that qualify so that other portions of the material, documents, 10 items, or communications for which protection is not warranted are not swept 11 unjustifiably within the ambit of this Order. 12 Mass, indiscriminate, or routinized designations are prohibited. Designations 13 that are shown to be clearly unjustified or that have been made for an improper 14 purpose (e.g., to unnecessarily encumber the case development process or to 15 impose unnecessary expenses and burdens on other parties) may expose the 16 Designating Party to sanctions. 17 If it comes to a Designating Party’s attention that information or items that it 18 designated for protection do not qualify for protection, that Designating Party must 19 promptly notify all other Parties that it is withdrawing the inapplicable designation. 20 7.2 Manner and Timing of Designations. Except as otherwise provided in 21 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 22 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 23 under this Order must be clearly so designated before the material is disclosed or 24 produced. 25 Designation in conformity with this Order requires: 26 (a) for information in documentary form (e.g., paper or electronic 27 documents, but excluding transcripts of depositions or other pretrial or trial 28 proceedings), that the Producing Party affix at a minimum, the legend 1 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 2 contains protected material. If only a portion or portions of the material on a page 3 qualifies for protection, the Producing Party also must clearly identify the protected 4 portion(s) (e.g., by making appropriate markings in the margins). 5 A Party or Non-Party that makes original documents available for inspection 6 need not designate them for protection until after the inspecting Party has indicated 7 which documents it would like copied and produced. During the inspection and 8 before the designation, all of the material made available for inspection shall be 9 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 10 documents it wants copied and produced, the Producing Party must determine 11 which documents, or portions thereof, qualify for protection under this Order. Then, 12 before producing the specified documents, the Producing Party must affix the 13 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 14 portion or portions of the material on a page qualifies for protection, the Producing 15 Party also must clearly identify the protected portion(s) (e.g., by making 16 appropriate markings in the margins). 17 (b) for testimony given in depositions that the Designating Party 18 identify the Disclosure or Discovery Material on the record, before the close of the 19 deposition all protected testimony. 20 (c) for information produced in some form other than documentary 21 and for any other tangible items, that the Producing Party affix in a prominent place 22 on the exterior of the container or containers in which the information is stored the 23 legend “CONFIDENTIAL.” If only a portion or portions of the information 24 warrants protection, the Producing Party, to the extent practicable, shall identify the 25 protected portion(s). 26 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 27 failure to designate qualified information or items does not, standing alone, waive 28 the Designating Party’s right to secure protection under this Order for such 1 material. Upon timely correction of a designation, the Receiving Party must make 2 reasonable efforts to assure that the material is treated in accordance with the 3 provisions of this Order. 4 5 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6 8.1 Timing of Challenges. Any Party or Non-Party may challenge a 7 designation of confidentiality at any time that is consistent with the Court’s 8 Scheduling Order. 9 8.2 Meet and Confer. The Challenging Party shall initiate the conferring 10 and discovery disagreement process under Local Rule 251. 11 8.3 The burden of persuasion in any such challenge proceeding shall be on 12 the Designating Party. Frivolous challenges, and those made for an improper 13 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 14 parties) may expose the Challenging Party to sanctions. Unless the Designating 15 Party has waived or withdrawn the confidentiality designation, all parties shall 16 continue to afford the material in question the level of protection to which it is 17 entitled under the Producing Party’s designation until the Court rules on the 18 challenge. 19 20 9. ACCESS TO AND USE OF PROTECTED MATERIAL 21 9.1 Basic Principles. A Receiving Party may use Protected Material that is 22 disclosed or produced by another Party or by a Non-Party in connection with this 23 Action only for prosecuting, defending, or attempting to settle this Action. Such 24 Protected Material may be disclosed only to the categories of persons and under the 25 conditions described in this Order. When the Action has been terminated, a 26 Receiving Party must comply with the provisions of section 13 below (FINAL 28 Protected Material must be stored and maintained by a Receiving Party at a 1 location and in a secure manner that ensures that access is limited to the persons 2 authorized under this Order. 3 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 4 otherwise ordered by the court or permitted in writing by the Designating Party, a 5 Receiving Party may disclose any information or item designated 6 “CONFIDENTIAL” only to: 7 (a) the Receiving Party’s Outside Counsel of Record in this Action, 8 as well as employees of said Outside Counsel of Record to whom it is reasonably 9 necessary to disclose the information for this Action; 10 (b) the officers, directors, and employees (including House 11 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this 12 Action, and who have signed the “Acknowledgement and Agreement to Be Bound” 13 (Exhibit A); 14 (c) Experts (as defined in this Order) of the Receiving Party to 15 whom disclosure is reasonably necessary for this Action and who have signed the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (d) the court and its personnel; 18 (e) court reporters and their staff; 19 (f) professional jury or trial consultants, mock jurors, and 20 Professional Vendors to whom disclosure is reasonably necessary for this Action 21 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 22 A); 23 (g) the author or recipient of a document containing the information 24 or a custodian or other person who otherwise possessed or knew the information; 25 (h) during their depositions, witnesses, and attorneys for witnesses, 26 in the Action to whom disclosure is reasonably necessary provided, and who have 27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 28 otherwise agreed by the Designating Party or ordered by the court. Pages of 1 transcribed deposition testimony or exhibits to depositions that reveal Protected 2 Material may be separately bound by the court reporter and may not be disclosed to 3 anyone except as permitted under this Stipulated Protective Order; and 4 (i) any mediator or settlement officer, and their supporting 5 personnel, mutually agreed upon by any of the parties engaged in settlement 6 discussions. 7 8 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 10 If a Party is served with a subpoena or a court order issued in other litigation 11 that compels disclosure of any information or items designated in this Action as 12 “CONFIDENTIAL,” that Party must: 13 (a) promptly notify in writing the Designating Party. Such 14 notification shall include a copy of the subpoena or court order; 15 (b) promptly notify in writing the party who caused the subpoena or 16 order to issue in the other litigation that some or all of the material covered by the 17 subpoena or order is subject to this Protective Order. Such notification shall include 18 a copy of this Stipulated Protective Order; and 19 (c) cooperate with respect to all reasonable procedures sought to be 20 pursued by the Designating Party whose Protected Material may be affected. 21 If the Designating Party timely seeks a protective order, the Party served with 22 the subpoena or court order shall not produce any information designated in this 23 action as “CONFIDENTIAL” before a determination by the court from which the 24 subpoena or order issued, unless the Party has obtained the Designating Party’s 25 permission. The Designating Party shall bear the burden and expense of seeking 26 protection in that court of its confidential material and nothing in these provisions 27 should be construed as authorizing or encouraging a Receiving Party in this Action 28 to disobey a lawful directive from another court. 1 2 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 4 (a) The terms of this Order are applicable to information produced 5 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such 6 information produced by Non-Parties in connection with this litigation is protected 7 by the remedies and relief provided by this Order. Nothing in these provisions 8 should be construed as prohibiting a Non-Party from seeking additional protections. 9 (b) In the event that a Party is required, by a valid discovery 10 request, to produce a Non-Party’s confidential information in its possession, and the 11 Party is subject to an agreement with the Non-Party not to produce the Non-Party’s 12 10 confidential information, then the Party shall: 13 (1) promptly notify in writing the Requesting Party and the 14 Non-Party that some or all of the information requested is subject to a 15 confidentiality agreement with a Non-Party; 16 (2) promptly provide the Non-Party with a copy of the 17 Stipulated Protective Order in this Action, the relevant discovery request(s), and a 18 reasonably specific description of the information requested; and 19 (3) make the information requested available for inspection 20 by the Non-Party, if requested. 21 (c) If the Non-Party fails to seek a protective order from this court 22 within 14 days of receiving the notice and accompanying information, the 23 Receiving Party may produce the Non-Party’s confidential information responsive 24 to the discovery request. If the Non-Party timely seeks a protective order, the 25 Receiving Party shall not produce any information in its possession or control that 26 is subject to the confidentiality agreement with the Non-Party before a 27 determination by the court. Absent a court order to the contrary, the Non-Party shall 28 bear the burden and expense of seeking protection in this court of its Protected 1 Material. 2 3 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 5 Protected Material to any person or in any circumstance not authorized under this 6 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 7 writing the Designating Party of the unauthorized disclosures, (b) use its best 8 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 9 person or persons to whom unauthorized disclosures were made of all the terms of 10 this Order, and (d) request such person or persons to execute the “Acknowledgment 11 and Agreement to Be Bound” that is attached hereto as Exhibit A. 12 13 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 15 When a Producing Party gives notice to Receiving Parties that certain 16 inadvertently produced material is subject to a claim of privilege or other 17 protection, the obligations of the Receiving Parties are those set forth in Federal 18 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 19 whatever procedure may be established in an e-discovery order that provides for 20 production without prior privilege review. Pursuant to Federal Rule of Evidence 21 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 22 of a communication or information covered by the attorney-client privilege or work 23 product protection, the parties may incorporate their agreement in the stipulated 24 protective order submitted to the court. 25 26 14. MISCELLANEOUS 27 14.1 Right to Further Relief. Nothing in this Order abridges the right of any 28 person to seek its modification by the Court in the future. 1 14.2 Right to Assert Other Objections. By stipulating to the entry of this 2 Protective Order no Party waives any right it otherwise would have to object to 3 disclosing or producing any information or item on any ground not addressed in 4 this Stipulated Protective Order. Similarly, no Party waives any right to object on 5 any ground to use in evidence of any of the material covered by this Protective 6 Order. 7 14.3 Filing Protected Material. A Party that seeks to file under seal any 8 Protected Material must comply with Local Rule 141. Protected Material may only 9 be filed under seal pursuant to a court order authorizing the sealing of the specific 10 Protected Material at issue. If a Party's request to file Protected Material under seal 11 is denied by the court, then the Receiving Party may file the information in the 12 public record unless otherwise instructed by the court. 13 14 15. FINAL DISPOSITION 15 After the final disposition of this Action, as defined in paragraph 4, within 60 16 days of a written request by the Designating Party, each Receiving Party must 17 return all Protected Material to the Producing Party or destroy such material. As 18 used in this subdivision, “all Protected Material” includes all copies, abstracts, 19 compilations, summaries, and any other format reproducing or capturing any of the 20 Protected Material. Whether the Protected Material is returned or destroyed, the 21 Receiving Party must submit a written certification to the Producing Party (and, if 22 not the same person or entity, to the Designating Party) by the 60 day deadline that 23 (1) identifies (by category, where appropriate) all the Protected Material that was 24 returned or destroyed and (2)affirms that the Receiving Party has not retained any 25 copies, abstracts, compilations, summaries or any other format reproducing or 26 capturing any of the Protected Material. Notwithstanding this provision, Counsel 27 are entitled to retain an archival copy of all pleadings, motion papers, trial, 28 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 1 and trial exhibits, expert reports, attorney work product, and consultant and expert 2 work product, even if such materials contain Protected Material. Any such archival 3 copies that contain or constitute Protected Material remain subject to this Protective 4 Order as set forth in Section 4 (DURATION). 5 6 16. Any violation of this Order may be punished by any and all appropriate 7 measures including, without limitation, contempt proceedings and/or monetary 8 sanctions. 9 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 10

11 DATE: September 9, 2019 LAW OFFICE OF DONALD POTTER 12

13 __Donald Potter_/s/_________ Donald Potter 14 Attorneys for Plaintiff 15 DERRIK DIAMOND, an individual 16

17 DATE: September 9, 2019 BURKE, WILLIAMS & SORENSEN, LLP

18 __Paloma P. Peracchio /s/____ 19 Cheryl Johnson-Hartwell Paloma P. Peracchio 20 Lindsay M. Samuel 21 Attorney for Defendant WALMART INC. 22

25 Dated: September 9, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 26 27 28 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of Derrik Diamond v. Walmart Inc., Case No. 1:19-CV-00857- 8 LJO-JLT. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly 11 promise that I will not disclose in any manner any information or item that is 12 subject to this Stipulated Protective Order to any person or entity except in strict 13 compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Eastern District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint ____________________ [print or type 18 full name] of _____________________________ [print or type full address and 19 telephone number] as my California agent for service of process in connection with 20 this action or any proceedings related to enforcement of this Stipulated Protective 21 Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: _______________________________ 25 Signature: __________________________________

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