Eileen Farrell v. Sams West, Inc.

• Court: District Court, C.D. California
• Decided: August 23, 2023
• Docket: 5:23-cv-01370
• Status: Unknown

Opinion

1 B ron D’Angelo, Esq. (SBN 246819) Sean N. Costa, Esq. (SBN 347439) 2 BURGER | MEYER LLP 999 Corporate Drive, Suite 220 3 Ladera Ranch, CA 92694 4 Telephone: (949) 427-1888 Facsimile: (949) 427-1889 5 Email: bdangelo@burgermeyer.com scosta@burgermeyer.com 6 Attorneys for Defendant 7 SAM’S WEST, INC. (erroneously named in complaint as “SAM’S WEST, INC., SAM’S WEST, INC. dba SAM’S CLUB”) 8

9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA

12 EILEEN FARRELL, Case No: 5:23-cv-01370-AB-SP Hon. André Birotte Jr. 13 Plaintiff, Crtrm 7B – First Street Courthouse

14 vs. 15 STIPULATED PROTECTIVE SAM'S WEST, INC., and DOES 1 TO ORDER 16 100, Inclusive, [NOTE CHANGES MADE BY 17 Defendants. COURT IN §§ 1.2, 6.1, 9.3]

18 19 1. PURPOSE AND LIMITATIONS 20 The following parties, EILEEN FARRELL (“Plaintiff”) and SAM’S WEST, 21 INC. (“Sam’s West”), by their undersigned counsel, have and hereby stipulate and 22 agree to entry of the following Stipulated Protective Order and to abide by the 23 following terms: 24 WHEREAS, the Parties have propounded or will propound certain discovery 25 request and initial disclosures including information which either Party considers to 26 be proprietary, confidential business records and/or trade secrets, or sensitive 27 confidential or private information (“confidential documents and information”); and 28 1 WHEREAS, the Parties have expressed a willingness to provide the 2 confidential documents and information which would be necessarily disclosed in 3 complying with these discovery requests and initial disclosures, provided that the 4 Court enter an appropriate protective order; and 5 WHEREAS, the Parties acknowledge that this Order does not confer blanket 6 protections on all disclosures or response to discovery and that the protection it 7 affords from public disclosure and use extends only to the limited information or 8 items that are entitled to confidential treatment under the applicable legal principles; 9 and 10 WHEREAS, the Parties have agreed to this; 11 The following procedure shall govern the production, use and disposal of the 12 confidential information: 13 1.1 Good Cause Statement. This action is likely to involve trade secrets 14 and other valuable commercial, financial, technical, security, and/or proprietary 15 information for which special protection from public disclosure and from use for 16 any purpose other than prosecution of this action is warranted. Such confidential 17 and proprietary materials and information consist of, among other things, 18 confidential business information, information regarding confidential business 19 practices, or other commercial information (including information implicating 20 privacy rights of third parties), information generally unavailable to the public, or 21 which may be privileged or otherwise protected from disclosure under state or 22 federal statutes, court rules, case decisions, or common law. Accordingly, to 23 expedite the flow of information, to facilitate the prompt resolution of disputes over 24 confidential discovery materials, to adequately protect information the parties are 25 entitled to keep confidential, to ensure that the Parties are permitted reasonable 26 necessary uses of such material in preparation for and in the conduct of trial, to 27 address their handling at the end of the litigation, and serve the ends of justice, a 28 protective order for such information is justified in this matter. It is the intent of the 1 parties that the information will not be designated as confidential for tactical reasons 2 and that nothing be so designated without good faith belief that it has been 3 maintained in a confidential, non-public manner, and there is good cause why it 4 should not be part of the public records of this case. 5 1.2 Acknowledgement of Procedure for Filing Under Seal. The Parties 6 further acknowledge, as set forth in Section 9.3 below, that this Stipulated Protective 7 Order does not entitle them to file confidential information under seal; Local Civil 8 Rule 79-5 sets forth the procedures that must be followed and the standards that will 9 be applied when a party seeks permission from the Court to file material under seal. 10 There is a strong presumption that the public has a right of access to judicial 11 proceedings and records in civil cases. In connection with non-dispositive motions, 12 good cause must be shown to support a filing under seal. See Kamakana v. City and 13 County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 14 307 F.3d 1206, 1210-11 (9th Cir. 2006), Makar-Welbon v. Sony Electronics, Inc., 15 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require 16 good cause showing), and a specific showing of good cause or compelling reasons 17 with proper evidentiary support and legal justification, must be made with respect to 18 Protected Material that a party seeks to file under seal. The Parties’ mere 19 designation of Disclosure or Discovery Materials as CONFIDENTIAL does not— 20 without submission of competent evidence by declaration, establishing that the 21 material sought to be filed under seal qualifies as confidential, privileged, or 22 otherwise protectable—constitute good cause. 23 Further, if a party is seeking sealing related to a dispositive motion, then 24 compelling reasons, not only good cause, for the sealing must be shown and the 25 relief sought shall be narrowly tailored to serve the specific interest to be protected. 26 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 27 each item or type of information, document, or thing sought to be filed or introduced 28 under seal in connection with a dispositive motion, the party seeking protection 1 must articulate compelling reasons, supported by specific facts and legal 2 justification, for the requested sealing order. Again, competent evidence supporting 3 the application to file documents under seal must be provided by declaration. 4 Any document that is not confidential, privileged, or otherwise protectable in 5 its entirety will not be filed under seal if the confidential portions can be redacted. 6 If documents can be redacted, then a redacted version for public viewing, omitting 7 only the confidential, privileged, or otherwise protectable portions of the document, 8 shall be filled. Any application that seeks to file documents under seal in their 9 entirety should include an explanation of why redaction is not feasible. 10 2. SCOPE 11 The protection conferred by this Stipulation and Order cover not only 12 confidential material but also (1) any information copied or extracted from the 13 confidential material; (2) all copies, excerpts, summaries, or compilations of the 14 confidential material, and (3) any testimony, conversations, or presentations by 15 Parties or their Counsels that might reveal the confidential material. 16 Any use of the confidential material at trial shall be governed by the orders of 17 the trial judge. This Order does not govern the use of the confidential material at 18 trial. 19 3. DURATION 20 Once a case proceeds to trial, information that was designated as 21 “confidential” or “produced pursuant to protective order” or in some similar fashion 22 any document for which it claims protection under this Order, becomes public and 23 will be presumptively available to all members of the public, including the press, 24 unless compelling reasons supported in advance of trial. See Kamakana, 447 F.3d at 25 1180-81 (distinguishing “good cause” showing for sealing documents produced in 26 discovery from “compelling reasons” standard when merits-related documents are 27 part of court record). Accordingly, the terms of this Protective Order do not extend 28 beyond the commencement of the trial. 1 4. DESIGNATING PROTECTED MATERIAL 2 4.1 Designation of Confidential Documents and Information. The 3 Responding Party shall mark as “confidential” or “produced pursuant to protective 4 order” or in some similar fashion any document for which it claims protection under 5 this Order. If only a portion of the material on a page qualifies for protection, the 6 Responding Party also must clearly identify the protected portion(s) (e.g., by making 7 appropriate markings in the margins). The document, thing and information 8 contained in them or gleaned from them shall only be used, shown and disclosed 9 only as provided in this Order. The term “confidential documents and information” 10 as used in this Order shall be construed to include the document and materials so 11 marked, and their content, substance and the information contained in or gleaned 12 from them. The term shall also be construed to include any summaries, quotes, 13 excerpts and/or paraphrases of the documents, things or information. The 14 designation shall be made in good faith and shall not be made with respect to any 15 documents which are in the public domain, such as patents, or any other documents 16 which has previously been produced or disseminated without confidentiality 17 protection. 18 Mass, indiscriminate or routinized designations are prohibited. Designations 19 that are shown to be clearly unjustified or that have been made for an improper 20 purpose (e.g. to unnecessarily encumber the case development process or to impose 21 unnecessary expenses and burdens on other parties) may expose the Designating 22 Party to sanctions. 23 If it comes to a Responding Party’s attention that information or items that it 24 designated for protection do not qualify for protection, that Responding Party must 25 promptly notify all other Parties that it is withdrawing the inapplicable designation. 26 4.2 Inadvertent Failures to Designate. If timely corrected, an inadvertent 27 failure to designate qualified information or items does not, standing alone, waive 28 the Responding Party’s right to secure protection under this Order for such material. 1 Upon timely correction of a designation, the Receiving Party must make reasonable 2 efforts to assure that the material is treated in accordance with the provisions of this 3 Order. 4 5. ACCESS TO AND USE OF PROTECTED MATERIAL 5 5.1 Access to Confidential Documents and Information by Qualified 6 Persons. This Protective Order is limited to the context of pre-trial civil discovery. 7 This Protective Order does not restrict disseminations of information if gained from 8 other public sources outside of pre-trial civil discovery. Accordingly, access to 9 confidential documents and other materials, any parts thereof, any summaries or 10 extracts thereof, as well as matters contained therein which are produced or obtained 11 exclusively through pre-trial discovery shall be limited to the following “qualified 12 persons.” The following persons are automatically deemed “qualified person:” 13 a. This Court and its employees; 14 b. The jurors; 15 c. Counsel of record for the parties to this lawsuit; 16 d. Those paralegals, stenographic and clerical employees who are 17 employed by and assisting counsel of record; 18 e. The parties of record and their officers, directors, employees, 19 counsel of record and insures to the extent necessary to assist in 20 preparing for discovery, depositions, resolution, or for trial, who 21 are otherwise assisting in this litigation; 22 f. Deposition witnesses; 23 g. Witnesses called at trial; 24 h. Any mediator who is assigned/chosen to hear this matter, and 25 his/her staff, subject to their agreement to maintain 26 confidentiality to the same degree as required by this stipulation; 27 and 28 1 i. Any expert or consultant who has been retained or specially 2 employed by a party in anticipation of this litigation or for trial 3 of this case, to the extent necessary to assist in litigation, and 4 who has signed a written certification in the form set as Exhibit 5 “A”; provided, however, that no confidential documents and 6 information shall be disseminated to any expert or consultant: 7 i. Who is an employee of a direct business competitor of the 8 party producing the information; or 9 ii. Who is employed by a direct business competitor of the 10 party producing the information and who directly 11 participates in the design, manufacturing, marketing, or 12 service activities of direct business competitors. 13 Counsel of record shall maintain such certifications for all designated experts, 14 and shall provide copies of the certifications upon demand to counsel for any 15 opposing party. Demand to one counsel of record for a party is deemed to be a 16 demand to all counsel of record for a party. 17 5.2 Jurisdiction Over Qualified Persons. Each qualified person is subject to 18 the jurisdiction of this Court for purposes of enforcement of this Order. Counsel of 19 record are responsible for ensuring that their employees and any experts they retain 20 comply strictly with this Order. Violation by an employee of counsel or by an 21 expert retained by counsel shall be deemed a violation of counsel. 22 5.3 Use of Confidential Documents and Information Generally. 23 Confidential documents, things and information may be used solely in connection 24 with this lawsuit and for no other purpose. No qualified person who gains access to 25 the confidential documents, things and information may disclose them or their 26 contents to any other person without the written stipulation of the producing party or 27 by order of this Court. 28 1 5.4 Use of Confidential Documents and Information in this Lawsuit. 2 Confidential documents, things and information may be used at trial or at 3 depositions, in accordance with the following safeguards: if confidential documents, 4 things and information are used in depositions, all portions of the transcript of such 5 depositions and exhibits thereto which refer to or relate to such confidential 6 documents, things or information shall themselves be considered as confidential 7 documents. The Responding Party will identify the disclosure or discovery material 8 on the record, before the close of the deposition of all protected testimony. The 9 party introducing such confidential portions of the transcript and exhibits separately 10 and labels them “confidential.” In addition, each deponent is ordered that he may 11 not divulge any confidential documents, things or information except to qualified 12 persons. 13 6. CHALLENGING CONFIDENTIALITY DESGINATIONS 14 6.1 Challenges to Claims of Confidentiality. If a party contends that any 15 document, information or portion of them which another party or third party has 16 designated as confidential are not entitled to protection, they may file a motion to 17 change the designation in compliance with Local Rule 37.1 et seq., including the 18 meet and confer and joint stipulation requirements. The burden is placed on the 19 proponent of confidentiality to demonstrate good cause. The document and 20 information shall remain confidential until their status is changed by stipulation or 21 order. 22 7. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 23 PRODUCED IN THIS LITIGATION 24 (a) The terms of this Order are applicable to information produced by a Non- 25 Party in this Action as designated as “confidential” or “produced pursuant to 26 protective order” or in some similar fashion any document for which it claims 27 protection under this Order. Such information produced by Non-Parties in 28 connection with this litigation is protected by the remedies and relief provided by 1 this Order. Nothing in these provisions should be construed as prohibiting a Non- 2 Party from seeking additional protections. 3 (b) In the event that a Party is required, by a valid discovery request, to 4 produce a Non-Party’s confidential information in its possession, and the Party is 5 subject to an agreement with the Non-Party not to produce the Non-Party’s 6 confidential information, then the Party shall: 7 (1) promptly notify in writhing the Required Party and the Non-Party 8 that some or all of the information requested is subject to a confidentiality 9 agreement with a Non-Party; 10 (2) promptly provide the Non-Party a copy of the Stipulated Protective 11 Order in this Action, the relevant discovery request(s), and a reasonably specific 12 description of the information requested; and 13 (3) make the information requested available for inspection by the 14 Non-Party, if requested. 15 (c) If the Non-Party fails to seek a protective order from this Court with 14 16 days of receiving the notice and accompanying information, the Receiving Party 17 may produce the Non-Party’s confidential information responsive to the discovery 18 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 19 not produce any information in its possession or control that is subject to the 20 confidentiality agreement with the Non-Party before a determination by the Court. 21 Absent a court order to the contrary, the Non-Party shall bear the burden and 22 expense of seeking protection in this Court of its Protected Material. 23 8. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 When a Responding Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or otherwise 27 protection, the obligations of the Receiving Parties are those set forth in Federal 28 Rule of Civil Procedure 16(b)(5)(B). This provision is not intended to modify 1 whatever procedure may be established in an e-discovery order that provides for 2 production without prior privilege review. Pursuant to Federal Rule of Evidence 3 502(d) and (e), insofar as the Parties reach an agreement on the effect of disclosure 4 of a communication or information covered by the attorney-client privilege or work 5 product protection, the Parties may incorporate their agreement in the Stipulated 6 Protective Order submitted to the Court. 7 9. MISCELLANEOUS 8 9.1 Right to Further Relief. Nothing in this Order abridges the rights of 9 any person to seek its modification by the Court in the future. 10 9.2 Right to Assert Other Objections. By stipulating to the entry of this 11 Protective Order, no Party waives any right it otherwise would have to object to 12 disclosing or producing any information or item on any ground not addressed in this 13 Stipulated Protective Order. Similarly, no Party waives any right to object on any 14 ground to use in evidence of any of the material covered by this Protecive Order. 15 9.3 Filing and Sealing. A Party that seeks to file under seal any Protected 16 Material must comply with Local Rule 79-5. Protected Material may only be filed 17 under seal pursuant to a court order authorizing the sealing of the specific Protected 18 Material at issue. If a Party’s request to file Protected Material under seal is denied 19 by the court, then the Party may file the information in the public record unless 20 otherwise instructed by the court. 21 9.4 Amendments. Nothing in this Order will prejudice either party from 22 seeking amendments broadening or restricting the rights of access to and the use of 23 confidential documents or information, or contesting the designation of a 24 confidential document or qualified person. 25 10. FINAL DISPOSITION 26 10.1 Disposal at the Conclusion of this Action. After the final disposition of 27 this Action, within sixty (60) days of a written request by the Responding Party, 28 each Receiving Party must return all confidential documents, things and 1 information, and all copies thereof. Whether the documents, things and information 2 is returned or destroyed, the Receiving Party must submit a written certification to 3 the Producing Party (and, if not the same person or entity, to the Responding Party) 4 by the 60 day deadline that (1) identifies (by category, where appropriate) all the 5 confidential material that was returned or destroyed and (2) affirms that the 6 Receiving Party has not retained any copies, abstracts, compilation, summaries or 7 any other format reproducing or capturing any of the confidential material. 8 Notwithstanding this provision, Counsel are entitled to retain any archival copy of 9 all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 10 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 11 work product, and consultant and expert work product, even if such material contain 12 confidential material. Any such archival copies that contain or constitute 13 confidential material remain subject to this Protective Order as set forth in Section 3 14 (DURATION). 15 // 16 //

17 18 19 20 21 22 23 24 25 26 27 28 1 10.2 Execution. Facesimile copies of signature pages may be used as 2 originals and this Stipulated Protective Order may be executed in counterparts with 3 the same full force and effect. This Stipulation and Protecive Order consists of 4 thirteen (13) pages, inclusive of a single-page exhibit, and is executed on the date set 5 below. 6 7 8 Dated: August 17, 2023 MADRID LAW FIRM 9 /s/ 10 Eduardo M. Madrid, Esq. Erica L. Madrid, Esq. 11 Attorneys for Plaintiff EILEEN FARRELL 12

13 Dated: August 17, 2023 BURGER | MEYER LLP 14

15 /s/ 16 Bron E. D’Angelo, Esq. Sean N. Costa, Esq. 17 Attorneys for Defendant SAM’S WEST, INC. 18

20 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

22 Dated: August 23, 2023

24 __________________ 25 Sheri Pym United States Magistrate Judge 26

27 28 1 EILEEN FARREEXLHLB vI.T S A“AM”’ S WEST, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF 2 CALIFORNIA CASE NO. 5:23-cv-01370-AB-SP 3 I, , [print or type name] am employed by 4 I am: 5 a. A party to this action. 6 b. Counsel for . 7 c. Employed by . 8 d. I have been retained by counsel for . 9 My present occupation or job description is: 10 11 12 13 I hereby acknowledge that I have received and read a copy of the Protective 14 Order entered in this action in the United States District Court Central District of 15 California, Case No. 5:23-cv-01370-AB-SP, and I understand the limitations this 16 Protective Order imposes upon the use, disclosure, and the eventual return and/or 17 destruction of information designated as “confidential litigation materials.” I further 18 understand that any unauthorized use and disclosure of any confidential litigation 19 materials shall constitute contempt of Court, and I hereby consent to the personal 20 jurisdiction of the United States Central District of California in connection with any 21 use or disclosure of confidential litigation materials. I agree to be bound by all 22 terms of such Protective Order. 23 24 25 26 27 28 Dated: Signed: