Griselda Orellana v. Target Corporation

• Court: District Court, C.D. California
• Decided: March 26, 2021
• Docket: 2:20-cv-06665
• Status: Unknown

Opinion

2 3

7 8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA 10 GRISELDA ORELLANA, an CASE NO. 2:20-cv-06665 SVW(KSx) 11 individual, 12 District Judge: Stephen V. Wilson Plaintiff, Magistrate Judge: Karen L. Stevenson 13 Courtroom 10A 14 vs. 15 TARGET CORPORATION, a [PROPOSED] STIPULATED 16 business entity; and DOES l through PROTECTIVE ORDER 17 100, inclusive,

18 Defendants. 19 Complaint Filed: April 20, 2020 20 21 22 1. A. PURPOSES AND LIMITATIONS 23 Discovery in this action is likely to involve production of confidential, proprietary 24 or private information for which special protection from public disclosure and from use 25 for any purpose other than prosecuting this litigation may be warranted. Accordingly, 26 the parties hereby stipulate to and petition the Court to enter the following Stipulated 27 Protective Order. The parties acknowledge that this Order does not confer blanket 28 protections on all disclosures or responses to discovery and that the protection it affords 1 from public disclosure and use extends only to the limited information or items that are 2 entitled to confidential treatment under the applicable legal principles. 3 B. GOOD CAUSE STATEMENT 4 This action is likely to involve trade secrets, pricing lists and other valuable 5 research, development, commercial, financial, technical and/or proprietary information 6 for which special protection from public disclosure and from use for any purpose other 7 than prosecution of this action is warranted. Such confidential and proprietary materials 8 and information consist of, among other things, confidential business or financial 9 information, information regarding confidential business practices, or other confidential 10 research, development, or commercial information (including information implicating 11 privacy rights of third parties), information otherwise generally unavailable to the 12 public, or which may be privileged or otherwise protected from disclosure under state 13 or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite 14 the flow of information, to facilitate the prompt resolution of disputes over 15 confidentiality of discovery materials, to adequately protect information the parties are 16 entitled to keep confidential, to ensure that the parties are permitted reasonable necessary 17 uses of such material in preparation for and in the conduct of trial, to address their 18 handling at the end of the litigation, and serve the ends of justice, a protective order for 19 such information is justified in this matter. It is the intent of the parties that information 20 will not be designated as confidential for tactical reasons and that nothing be so 21 designated without a good faith belief that it has been maintained in a confidential, non- 22 public manner, and there is good cause why it should not be part of the public record of 23 this case. 24 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 25 SEAL 26 This Stipulated Protective Order does not entitle the parties to file confidential 27 information under seal; Local Civil Rule 79-5 sets forth the procedures that must be 28 followed and the standards that will be applied when a party seeks permission from the 1 court to file material under seal. 2 There is a strong presumption that the public has a right of access to judicial 3 proceedings and records in civil cases. In connection with non-dispositive motions, 4 good cause must be shown to support a filing under seal. See Kamakana v. City and 5 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 6 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 7 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause 8 showing), and a specific showing of good cause or compelling reasons with proper 9 evidentiary support and legal justification, must be made with respect to Protected 10 Material that a party seeks to file under seal. The parties’ mere designation of Disclosure 11 or Discovery Material as CONFIDENTIAL does not—without the submission of 12 competent evidence by declaration, establishing that the material sought to be filed under 13 seal qualifies as confidential, privileged, or otherwise protectable—constitute good 14 cause. 15 Further, if a party requests sealing related to a dispositive motion or trial, then 16 compelling reasons, not only good cause, for the sealing must be shown, and the relief 17 sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos 18 v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type 19 of information, document, or thing sought to be filed or introduced under seal in 20 connection with a dispositive motion or trial, the party seeking protection must articulate 21 compelling reasons, supported by specific facts and legal justification, for the requested 22 sealing order. Again, competent evidence supporting the application to file documents 23 under seal must be provided by declaration. 24 Any document that is not confidential, privileged, or otherwise protectable in its 25 entirety will not be filed under seal if the confidential portions can be redacted. If 26 documents can be redacted, then a redacted version for public viewing, omitting only 27 the confidential, privileged, or otherwise protectable portions of the document, shall be 28 filed. Any application that seeks to file documents under seal in their entirety should 1 include an explanation of why redaction is not feasible. 2 2. DEFINITIONS 3 2.1 Action: Griselda Orellana v. Target Corporation (Case No. 2:20-cv- 4 06665). 5 2.2 Challenging Party: a Party or Non-Party that challenges the designation of 6 information or items under this Order. 7 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how 8 it is generated, stored or maintained) or tangible things that qualify for protection under 9 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 10 Statement. This Order is meant to encompass all forms of disclosure which may contain 11 Confidential Material, including all documents, pleadings, motions, exhibits, 12 declarations, affidavits, deposition transcripts, inspection reports, and all other tangible 13 items (electronic media, photographs, video cassettes, etc.). For purposes of this 14 Stipulated Protective Order Confidential Material is specifically defined as follows: 1) 15 Guest Incident Report, 2) Target Surveillance Videos, 3) Insurance Declarations, and 4) 16 Photographs of the Scene of the Incident. 17 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 18 support staff). 19 2.5 Designating Party: a Party or Non-Party that designates information or 20 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 21 2.6 Disclosure or Discovery Material: all items or information, regardless of 22 the medium or manner in which it is generated, stored, or maintained (including, among 23 other things, testimony, transcripts, and tangible things), that are produced or generated 24 in disclosures or responses to discovery in this matter. 25 2.7 Expert: a person with specialized knowledge or experience in a matter 26 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 27 expert witness or as a consultant in this Action. 28 2.8 House Counsel: attorneys who are employees of a party to this Action. 1 House Counsel does not include Outside Counsel of Record or any other outside counsel. 2 2.9 Non-Party: any natural person, partnership, corporation, association or 3 other legal entity not named as a Party to this action. 4 2.10 Outside Counsel of Record: attorneys who are not employees of a party to 5 this Action but are retained to represent or advise a party to this Action and have 6 appeared in this Action on behalf of that party or are affiliated with a law firm that has 7 appeared on behalf of that party, and includes support staff. 8 2.11 Party: any party to this Action, including all of its officers, directors, 9 employees, consultants, retained experts, and Outside Counsel of Record (and their 10 support staffs). 11 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 12 Discovery Material in this Action. 13 2.13 Professional Vendors: persons or entities that provide litigation support 14 services (e.g., photocopying, videotaping, translating, preparing exhibits or 15 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 16 their employees and subcontractors. 17 2.14 Protected Material: any Disclosure or Discovery Material that is designated 18 as “CONFIDENTIAL.” 19 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 20 from a Producing Party. 21 3. SCOPE 22 The protections conferred by this Stipulation and Order cover not only Protected 23 Material (as defined above), but also (1) any information copied or extracted from 24 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 25 Material; and (3) any testimony, conversations, or presentations by Parties or their 26 Counsel that might reveal Protected Material. 27 Any use of Protected Material at trial shall be governed by the orders of the trial 28 judge. This Order does not govern the use of Protected Material at trial. 1 4. DURATION 2 Once a case proceeds to trial, information that was designated as 3 CONFIDENTIAL or maintained pursuant to this protective order used or introduced as 4 an exhibit at trial becomes public and will be presumptively available to all members of 5 the public, including the press, unless compelling reasons supported by specific factual 6 findings to proceed otherwise are made to the trial judge in advance of the trial. See 7 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing 8 documents produced in discovery from “compelling reasons” standard when merits- 9 related documents are part of court record). Accordingly, the terms of this protective 10 order do not extend beyond the commencement of the trial. 11 5. DESIGNATING PROTECTED MATERIAL 12 5.1 Exercise of Restraint and Care in Designating Material for Protection. 13 Each Party or Non-Party that designates information or items for protection under this 14 Order must take care to limit any such designation to specific material that qualifies 15 under the appropriate standards. The Designating Party must designate for protection 16 only those parts of material, documents, items or oral or written communications that 17 qualify so that other portions of the material, documents, items or communications for 18 which protection is not warranted are not swept unjustifiably within the ambit of this 19 Order. 20 Mass, indiscriminate or routinized designations are prohibited. Designations that 21 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., 22 to unnecessarily encumber the case development process or to impose unnecessary 23 expenses and burdens on other parties) may expose the Designating Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that it 25 designated for protection do not qualify for protection, that Designating Party must 26 promptly notify all other Parties that it is withdrawing the inapplicable designation. 27 5.2 Manner and Timing of Designations. Except as otherwise provided in this 28 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 1 ordered, Disclosure or Discovery Material that qualifies for protection under this Order 2 must be clearly so designated before the material is disclosed or produced. 3 Designation in conformity with this Order requires: 4 (a) for information in documentary form (e.g., paper or electronic 5 documents, but excluding transcripts of depositions or other pretrial or trial 6 proceedings), that the Producing Party affix at a minimum, the legend 7 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 8 contains protected material. If only a portion of the material on a page qualifies for 9 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 10 by making appropriate markings in the margins). 11 A Party or Non-Party that makes original documents available for inspection need 12 not designate them for protection until after the inspecting Party has indicated which 13 documents it would like copied and produced. During the inspection and before the 14 designation, all of the material made available for inspection shall be deemed 15 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 16 copied and produced, the Producing Party must determine which documents, or portions 17 thereof, qualify for protection under this Order. Then, before producing the specified 18 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page 19 that contains Protected Material. If only a portion of the material on a page qualifies for 20 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 21 by making appropriate markings in the margins). 22 (b) for testimony given in depositions that the Designating Party identifies 23 the Disclosure or Discovery Material on the record, before the close of the deposition all 24 protected testimony. 25 (c) for information produced in some form other than documentary and for 26 any other tangible items, that the Producing Party affix in a prominent place on the 27 exterior of the container or containers in which the information is stored the legend 28 “CONFIDENTIAL.” If only a portion or portions of the information warrants 1 protection, the Producing Party, to the extent practicable, shall identify the protected 2 portion(s). 3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 4 failure to designate qualified information or items does not, standing alone, waive the 5 Designating Party’s right to secure protection under this Order for such material. Upon 6 timely correction of a designation, the Receiving Party must make reasonable efforts to 7 assure that the material is treated in accordance with the provisions of this Order. 8 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 9 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 10 designation of confidentiality at any time that is consistent with the Court’s Scheduling 11 Order. 12 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 13 resolution process under Local Rule 37-1 et seq. 14 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint 15 stipulation pursuant to Local Rule 37-2. 16 6.4 The burden of persuasion in any such challenge proceeding shall be on the 17 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., 18 to harass or impose unnecessary expenses and burdens on other parties) may expose the 19 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn 20 the confidentiality designation, all parties shall continue to afford the material in 21 question the level of protection to which it is entitled under the Producing Party’s 22 designation until the Court rules on the challenge. 23 7. ACCESS TO AND USE OF PROTECTED MATERIAL 24 7.1 Basic Principles. A Receiving Party may use Protected Material that is 25 disclosed or produced by another Party or by a Non-Party in connection with this Action 26 only for prosecuting, defending or attempting to settle this Action. Such Protected 27 Material may be disclosed only to the categories of persons and under the conditions 28 described in this Order. When the Action has been terminated, a Receiving Party must 1 comply with the provisions of section 13 below (FINAL DISPOSITION). 2 Protected Material must be stored and maintained by a Receiving Party at a 3 location and in a secure manner that ensures that access is limited to the persons 4 authorized under this Order. 5 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 6 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 7 may disclose any information or item designated “CONFIDENTIAL” only to: 8 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 9 well as employees of said Outside Counsel of Record to whom it is reasonably necessary 10 to disclose the information for this Action; 11 (b) the officers, directors, and employees (including House Counsel) of 12 the Receiving Party to whom disclosure is reasonably necessary for this Action; 13 (c) Experts (as defined in this Order) of the Receiving Party to whom 14 disclosure is reasonably necessary for this Action and who have signed the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 16 (d) the court and its personnel; 17 (e) court reporters and their staff; 18 (f) professional jury or trial consultants, mock jurors, and Professional 19 Vendors to whom disclosure is reasonably necessary for this Action and who have 20 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 21 (g) the author or recipient of a document containing the information or a 22 custodian or other person who otherwise possessed or knew the information; 23 (h) during their depositions, witnesses, and attorneys for witnesses, in the 24 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 25 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not 26 be permitted to keep any confidential information unless they sign the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 28 by the Designating Party or ordered by the court. Pages of transcribed deposition 1 testimony or exhibits to depositions that reveal Protected Material may be separately 2 bound by the court reporter and may not be disclosed to anyone except as permitted 3 under this Stipulated Protective Order; and 4 (i) any mediator or settlement officer, and their supporting personnel, 5 mutually agreed upon by any of the parties engaged in settlement discussions. 6 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 7 OTHER LITIGATION 8 If a Party is served with a subpoena or a court order issued in other litigation that 9 compels disclosure of any information or items designated in this Action as 10 “CONFIDENTIAL,” that Party must: 11 (a) promptly notify in writing the Designating Party. Such notification 12 shall include a copy of the subpoena or court order; 13 (b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the 14 subpoena or order is subject to this Protective Order. Such notification shall include a 15 copy of this Stipulated Protective Order; and 16 (c) cooperate with respect to all reasonable procedures sought to be 17 pursued by the Designating Party whose Protected Material may be affected. 18 If the Designating Party timely seeks a protective order, the Party served with the 19 subpoena or court order shall not produce any information designated in this action as 20 “CONFIDENTIAL” before a determination by the court from which the subpoena or 21 order issued, unless the Party has obtained the Designating Party’s permission. The 22 Designating Party shall bear the burden and expense of seeking protection in that court 23 of its confidential material and nothing in these provisions should be construed as 24 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive 25 from another court. 26 \\ 27 \\ 28 1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 2 IN THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by a 4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in connection with this litigation is protected by the remedies 6 and relief provided by this Order. Nothing in these provisions should be construed as 7 prohibiting a Non-Party from seeking additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to 9 produce a Non-Party’s confidential information in its possession, and the Party is subject 10 to an agreement with the Non-Party not to produce the Non-Party’s confidential 11 information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non- 13 Party that some or all of the information requested is subject to a confidentiality 14 agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a reasonably 17 specific description of the information requested; and 18 (3) make the information requested available for inspection by the 19 Non-Party, if requested. 20 (c) If the Non-Party fails to seek a protective order from this court within 21 14 days of receiving the notice and accompanying information, the Receiving Party may 22 produce the Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall not produce 23 any information in its possession or control that is subject to the confidentiality 24 agreement with the Non-Party before a determination by the court. Absent a court order 25 to the contrary, the Non-Party shall bear the burden and expense of seeking protection 26 in this court of its Protected Material. 27 \\ 28 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 3 Protected Material to any person or in any circumstance not authorized under this 4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 5 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 6 all unauthorized copies of the Protected Material, (c) inform the person or persons to 7 whom unauthorized disclosures were made of all the terms of this Order, and (d) request 8 such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 9 that is attached hereto as Exhibit A. 10 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 11 PROTECTED MATERIAL 12 When a Producing Party gives notice to Receiving Parties that certain inadvertently 13 produced material is subject to a claim of privilege or other protection, the obligations 14 of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 15 26(b)(5)(B). This provision is not intended to modify whatever procedure may be 16 established in an e-discovery order that provides for production without prior privilege 17 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach 18 an agreement on the effect of disclosure of a communication or information covered by 19 the attorney-client privilege or work product protection, the parties may incorporate their 20 agreement in the stipulated protective order submitted to the court. 21 12. MISCELLANEOUS 22 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 23 person to seek its modification by the Court in the future. 24 12.2 Right to Assert Other Objections. By stipulating to the entry of this 25 Protective Order, no Party waives any right it otherwise would have to object to 26 disclosing or producing any information or item on any ground not addressed in this 27 Stipulated Protective Order. Similarly, no Party waives any right to object on any 28 ground to use in evidence of any of the material covered by this Protective Order. 1 12.3 Filing Protected Material. A Party that seeks to file under seal any 2 Protected Material must comply with Local Civil Rule 79-5. Protected Material may 3 only be filed under seal pursuant to a court order authorizing the sealing of the specific 4 Protected Material at issue. If a Party’s request to file Protected Material under seal is 5 denied by the court, then the Receiving Party may file the information in the public 6 record unless otherwise instructed by the court. 7 13. FINAL DISPOSITION 8 After the final disposition of this Action, as defined in paragraph 4, within 60 days 9 of a written request by the Designating Party, each Receiving Party must return all 10 Protected Material to the Producing Party or destroy such material. As used in this 11 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 12 summaries, and any other format reproducing or capturing any of the Protected Material. 13 Whether the Protected Material is returned or destroyed, the Receiving Party must 14 submit a written certification to the Producing Party (and, if not the same person or 15 entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, 16 where appropriate) all the Protected Material that was returned or destroyed and (2) 17 affirms that the Receiving Party has not retained any copies, abstracts, compilations, 18 summaries or any other format reproducing or capturing any of the Protected Material. 19 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 20 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 21 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 22 consultant and expert work product, even if such materials contain Protected Material. 23 Any such archival copies that contain or constitute Protected Material remain subject to 24 this Protective Order as set forth in Section 4 (DURATION). 25 \\ 26 \\ 27 \\ 28 \\ VIOLATION 2 Any violation of this Order may be punished by appropriate measures including, 3|| without limitation, contempt proceedings and/or monetary sanctions. 4 5 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 6 71} DATED: March 26, 2021 yawn _L: Biaousn 9 REN L. STEVENSON 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28