Jinhui Kim v. Walmart, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JINHUI KIM, individually and on Case No. 2:22-cv-08380-SB-PVCx behalf of all others similarly situated, 11 DISCOVERY MATTER 12 Plaintiff, 13 v. PROTECTIVE ORDER GOVERNING 14 THE DESIGNATION AND HANDLING 15 WALMART INC., OF CONFIDENTIAL MATERIALS 16 Defendant. NOTE CHANGES IN BOLD MADE BY 17 THE COURT (¶ 19) 18 19 20 To expedite the flow of discovery material, facilitate the prompt resolution of 21 disputes over confidentiality, adequately protect material entitled to be kept 22 confidential, and ensure that protection is limited only to material so entitled, 23 Defendant Walmart Inc. (“Walmart”) and Plaintiff Jinhui Kim (“Plaintiff”) 24 (Defendant and Plaintiff are collectively, the “parties”), by and through their 25 respective counsel, and pursuant to Rule 26(c) and the Federal Rules of Civil 26 Procedure, hereby stipulate and agree to the following Stipulated Protective Order: 27 The parties have agreed to and have submitted to the Court, and for good cause 28 1 shown the Court hereby enters, the following Protective Order Governing The 2 Designation And Handling Of Confidential Materials (the “Order” or “Protective 3 Order”): 4 1. This Order shall govern the disclosure of materials designated as 5 Confidential Material in this litigation. Confidential Material, as used in this Order, 6 shall refer to any document or item designated as Confidential or Highly Confidential 7 – Attorneys’ Eyes Only, including but not limited to, documents or items produced 8 during discovery, all copies thereof, and the information contained in such material. 9 Nothing in this Order shall require any party to produce any specific documents or 10 category of documents which a party deems inappropriate for production. This Order 11 shall govern, for pretrial purposes only, the use of Confidential Information produced 12 during discovery in this Action. The Court shall determine how Confidential 13 Information is to be treated at trial. For purposes of this Order, the Designating Party 14 bears the burden of establishing the confidentiality of all such information, 15 documents, materials, or items. 16 Definitions of Confidential Material 17 2. Confidential Material, as used in this Order, consists of the following 18 materials and categories of materials: 19 a. Materials relating to any privileged, confidential, or nonpublic 20 information, related to trade secrets, research, design, development, 21 financial, technical, marketing, planning, personal, or commercial 22 information, as such terms are used in the Federal Rules of Civil 23 Procedure (Fed. R. Civ.) and any applicable case law interpreting Fed. 24 R. Civ. 26(c)(1)(G); contracts; non-public compilations of retail prices; 25 proprietary information; vendor agreements; personnel files; 26 claim/litigation information; and nonpublic policies and procedures shall 27 be deemed Confidential. 28 1 b. Confidential Information shall not include information that has been 2 publicly disclosed by any Party prior to the date hereof, or that has been 3 or is as of the date hereto generally available to the public, or that 4 becomes generally available to the public after the date hereof other than 5 as a result of disclosure by the Receiving Party. 6 c. Materials containing corporate trade secrets, nonpublic research and 7 development data, including, but not limited to, cost data, pricing 8 formulas, inventory management programs, and other sales or business 9 information not known to the public; information obtained from a non- 10 party pursuant to a non-disclosure agreement; and customer-related 11 Protected Data shall be deemed Highly Confidential – Attorneys’ Eyes 12 Only. Any designation of Highly Confidential – Attorneys’ Eyes Only 13 designation will require a separate and detailed showing of need. 14 d. Protected Data shall refer to any information that a party believes in 15 good faith to be subject to federal, state or foreign data protection laws 16 or other privacy obligations. Examples of such data protection laws 17 include but are not limited to The Gramm-Leach-Bliley Act, 15 U.S.C. 18 § 6801 et seq. (financial information); and, The Health Insurance 19 Portability and Accountability Act and the regulations thereunder, 45 20 CFR Part 160 and Subparts A and E of Part 164 (medical information). 21 Certain Protected Data may compel alternative or additional protections 22 beyond those afforded Highly Confidential – Attorneys’ Eyes Only 23 material, in which event the parties shall meet and confer in good faith, 24 and, if unsuccessful, shall move the Court for appropriate relief. 25 3. The parties agree that such Confidential Material as described in 26 paragraph 2 should be given the protection of an order of this Court to prevent injury 27 through disclosure to persons other than those persons involved in the prosecution or 28 1 defense of this litigation. 2 Procedure for Designating Information as Confidential 3 4. To designate information as confidential, the producing party shall mark 4 Confidential Material with the legend “CONFIDENTIAL” or “HIGHLY 5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Parties shall submit confidential 6 discovery responses, such as answers to interrogatories or answers to requests for 7 admissions, in a separate document stamped with the appropriate legend designating 8 those responses as Confidential Material. The Receiving Party may make copies of 9 Confidential Material and such copies shall become subject to the same protections 10 as the Confidential Material from which those copies were made. 11 a. Information on a disk or other electronic format (e.g., a native format 12 production) may be designated confidential by marking the storage 13 medium itself (or the native file’s title) with the legend 14 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 15 EYES ONLY.” The Receiving Party shall mark any hard-copy printouts 16 and the storage medium of any permissible copies of such electronic 17 material with the corresponding legend contained on the original and such 18 copies shall become subject to the same protections, as the Confidential 19 Material from which those copies were made. 20 b. Information disclosed at any deposition of a party taken in this action may 21 be designated by the party as confidential by indicating on the record at 22 the deposition that the information is confidential and subject to the 23 provisions of this Order. Alternatively, the party may designate 24 information disclosed at the deposition as confidential by notifying the 25 court reporter and other parties in writing, within fifteen (15) business 26 days of receipt of the transcript, of the specific pages and lines of the 27 transcript which are designated as confidential. The parties may agree to 28 1 a reasonable extension of the 15-business-day period for designation. 2 Designations of transcripts will apply to audio, video, or other recordings 3 of the testimony. During such 15-business-day period, the entire 4 transcript shall receive confidential treatment. Upon such designation, the 5 court reporter and each party shall affix the “CONFIDENTIAL” or 6 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” legend to 7 the designated pages and segregate them as appropriate. 8 c. Mass, indiscriminate, or routinized designations are prohibited. 9 Designations that are shown to be clearly unjustified or that have been 10 made for an improper purpose (e.g., to unnecessarily encumber the case 11 development process or to impose unnecessary expenses and burdens on 12 other parties) may expose the designating party to sanctions. 13 5. A producing party may change the confidentiality designation of 14 materials it has produced, as follows: (1) The producing party must give the receiving 15 parties notice of the change by identifying the documents and information at issue. 16 Once notice is given, the receiving party must make good-faith efforts to ensure that 17 the documents or information are accorded treatment under the new designation. (2) 18 Within a reasonable period after giving notice, the producing party must reproduce 19 the documents or information in a format that contains the new designation. (3) If 20 such information has been disclosed to persons not qualified pursuant to paragraph(s) 21 (12-13) below, the party who disclosed such information shall (a) take reasonable 22 efforts to retrieve previously disclosed Confidential Material; (b) advise such persons 23 that the material is Confidential; and (c) give the producing party written assurance 24 that steps (a) and (b) have been completed. 25 Data Security 26 6. The Parties agree to provide adequate security to protect data produced 27 by the other party(ies) or by non-parties. This includes secure data storage systems, 28 1 established security policies, and security training for employees, contractors and 2 experts. Adequate security also includes such measures as data encryption in transit, 3 data encryption at rest, data access controls, and physical security, whether 4 hosted/outsourced to a vendor or on premises. At a minimum, any receiving party 5 subject to the terms of this Confidentiality Order, will provide reasonable measures 6 to protect non-client data consistent with the American Bar Association Standing 7 Committee on Ethics and Professional Responsibility, Formal Opinion 477R. 8 Clawback Provisions 9 7. When a producing party gives notice to receiving party that certain 10 inadvertently produced material is subject to a claim of privilege or other protection, 11 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 12 Procedure 26(b)(5)(B). The Parties agree that the issue of whether the inadvertent 13 disclosure of privileged material shall constitute a waiver shall be governed by 14 Federal Rule of Evidence 502. 15 8. This Order shall be interpreted to provide the maximum protection 16 allowed by Federal Rule of Evidence (FRE) 502(d) and shall be enforceable and 17 granted full faith and credit in all other state and federal proceedings by 28 U.S. Code 18 § 1738. In the event of any subsequent conflict of law, the law that is most protective 19 of privilege and work product shall apply. 20 9. Nothing contained herein is intended to or shall serve to limit a party’s 21 right to conduct a review of documents, ESI or information (including metadata) for 22 relevance, responsiveness and/or segregation of privileged and/or protected 23 information before production. 24 10. If the receiving party has reason to believe that a produced document or 25 other information may reasonably be subject to a claim of privilege, then the receiving 26 party shall immediately sequester the document or information, cease using the 27 document or information and cease using any work product containing the 28 1 information, and shall inform the producing party of the beginning BATES number 2 of the document or, if no BATES number is available, shall otherwise inform the 3 producing party of the information. 4 11. A producing party must give written notice to any receiving party 5 asserting a claim of privilege, work-product protection, or other ground for reclaiming 6 documents or information (a “clawback request”). After a clawback request is 7 received, the receiving party shall immediately sequester the document (if not already 8 sequestered) and shall not review or use that document, or any work product 9 containing information taken from that document, for any purpose. The parties shall 10 meet and confer regarding any clawback request. 11 Who May Receive Confidential and Highly Confidential Information 12 12. Confidential Material. Any Confidential Material and the information 13 contained therein shall be disclosed only to the Court, its staff, in-house counsel and 14 outside counsel of record for each party, and also shall be disclosed on a need-to- 15 know basis only to the parties, counsel’s staff personnel, employees of a party to 16 whom disclosure is necessary in connection with the preparation for and trial of this 17 action, and any witnesses in the case (including consulting and testifying experts) as 18 may from time to time reasonably be necessary in prosecution or defense of this 19 action. 20 13. Highly Confidential—Attorneys’ Eyes Only Material. Material and 21 information designated as “Highly Confidential—Attorneys’ Eyes Only” shall only 22 be disclosed to the Court, its staff, in-house and outside counsel of record for each 23 party, the secretarial, clerical, and paralegal staff of each, and consulting and 24 testifying experts retained by a party in this action. 25 14. Persons Receiving Confidential Information Must Sign Exhibit A. 26 Counsel for each party shall advise all persons to whom Confidential Material is 27 disclosed pursuant to this Order of the existence of this Order and shall provide all 28 1 such persons (other than the Court and its staff) with a copy of this Order. Counsel 2 shall also require such persons to execute the Affidavit attached as Exhibit A, prior to 3 the disclosure of Confidential Material. 4 15. Duties in the Event of Unauthorized Disclosures. It shall be the 5 obligation of counsel, upon learning of any unauthorized disclosure or threatened 6 unauthorized disclosure of Confidential Information, or any other breach or 7 threatened breach of the provisions of this Order, to promptly notify counsel for the 8 Producing Party. The notification shall be supplemented with reasonable details of 9 the circumstances of the disclosure in order to permit the producing party to 10 understand and take appropriate steps. Each party and its counsel agree to take 11 reasonable and good-faith efforts to contain or limit any breach promptly upon 12 receiving notice of it, and to make reasonable and good-faith attempts to retrieve any 13 unauthorized disclosure of documents or information. 14 Authorized Uses of Confidential Material 15 16. Confidential Material shall only be used for the purpose of litigating the 16 above-captioned lawsuit and may not be used in other lawsuits. 17 17. Persons having knowledge of Confidential Material and information due 18 to their participation in the conduct of this litigation shall use such knowledge and 19 information only as permitted herein, and shall not disclose such Confidential 20 Material, their contents or any portion or summary thereof to any person(s) not 21 involved in the conduct of this litigation. If a party is served with a subpoena or a 22 court order issued in other litigation that compels disclosure of any information or 23 items designated in this Action as “CONFIDENTIAL,” that Party must: 24 (a) promptly notify in writing the designating party. Such notification will 25 include a copy of the subpoena or court order; 26 (b) promptly notify in writing the party who caused the subpoena or order to 27 issue in the other litigation that some or all of the material covered by the subpoena 28 1 or order is subject to this Protective Order. Such notification will include a copy of 2 this Stipulated Protective Order; and 3 (c) cooperate with respect to all reasonable procedures sought to be pursued 4 by the designating party whose Protected Material may be affected. 5 If the designating party timely seeks a protective order, the party served with 6 the subpoena or court order will not produce any information designated in this action 7 as “CONFIDENTIAL” before a determination by the court from which the subpoena 8 or order issued, unless the party has obtained the designating party’s permission. The 9 designating party will bear the burden and expense of seeking protection in that court 10 of its confidential material and nothing in these provisions should be construed as 11 authorizing or encouraging a receiving party in this Action to disobey a lawful 12 directive from another court 13 18. If any person having access to the Confidential Material herein shall 14 violate this Order, he/she may be subject to sanctions by the Court and may be liable 15 to pay for the damages caused by his/her violation. 16 Challenges to the Designation of Confidential Material 17 19. 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. If the conference of counsel does not resolve the dispute, the 23 challenging party shall request an informal discovery conference with the 24 Magistrate Judge pursuant to Judge Castillo’s procedures set forth under the 25 “Judges’ Requirements” tab on the Court’s website (http://www.cacd. 26 uscourts.gov/judges-schedules-procedures). Any written motion following an 27 informal discovery conference must comply with the joint stipulation 28 1 requirements of Local Rule 37-2. Pending resolution of any challenges to the 2 designation of documents or information, the material at issue shall continue to be 3 treated as Confidential Material until ordered otherwise by the Court. The burden of 4 persuasion in any such challenge proceeding will be on the designating party. 5 Withholding of Information 6 20. Redactions. The parties agree that narrowly tailored redactions are 7 appropriate for information that is privileged or protected from discovery as work 8 product or by reason of any other applicable privilege or immunity. Such privilege 9 redactions will state, over the redacted portion, “Redacted–Privileged”. Redactions 10 of emails will not redact the names of recipients or the subject line of the emails, 11 unless the subject line is itself privileged, in which case only so much of the subject 12 line will be redacted as may be needed. The parties will produce redacted documents 13 in TIFF format (or searchable PDF if production format dictates; or in native format 14 for file types that do not convert well to TIFF/PDF, such as Excel files) with 15 corresponding searchable OCR text and the associated metadata for the document, 16 ensuring the redacted content is fully protected from disclosure. 17 Confidential Material In Filings, Hearings, and Trial 18 21. Confidential Material in Filings. A Party that seeks to file under seal 19 any Protected Material must comply with Civil Local Rule 79-5. 20 22. Confidential Material in Hearings and Trial. The provisions of this 21 Order shall not affect, and this Order does not limit, the admissibility of Confidential 22 Material (or references to that material) as evidence at trial, or during a hearing or 23 similar proceeding in this action. Prior to using Confidential Material or the 24 information contained therein at any hearing that is open to the public, the party 25 seeking to use the Confidential Material must give at least seven (7) days advance 26 notice to the producing party of the intent to use the Confidential Material so that the 27 producing party may seek an appropriate Court Order to protect the Confidential 28 1 Material. 2 Continuing Effect of this Order and Duty to Destroy 3 23. Once a case proceeds to trial, all of the information that was designated 4 as confidential or maintained pursuant to this protective order becomes public and 5 will be presumptively available to all members of the public, including the press, 6 unless compelling reasons supported by specific factual findings to proceed otherwise 7 are made to the trial judge in advance of the trial. See Kamakana v. City and County 8 of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” 9 showing for sealing documents produced in discovery from “compelling reasons” 10 standard when merits-related documents are part of court record). Accordingly, the 11 terms of this protective order do not extend beyond the commencement of the trial. 12 After the final disposition of this Action, as defined above in this paragraph, within 13 60 days of a written request by the designating party, each receiving party must return 14 all protected material to the producing party or destroy such material. As used in this 15 subdivision, “all protected material” includes all copies, abstracts, compilations, 16 summaries, and any other format reproducing or capturing any of the protected 17 material. Whether the protected material is returned or destroyed, the receiving party 18 must submit a written certification to the producing party (and, if not the same person 19 or entity, to the designating party) by the 60 day deadline that (1) identifies (by 20 category, where appropriate) all the protected material that was returned or destroyed 21 and (2) affirms that the receiving party has not retained any copies, abstracts, 22 compilations, summaries or any other format reproducing or capturing any of the 23 protected material. Notwithstanding this provision, Counsel are entitled to retain an 24 archival copy of all pleadings, motion papers, trial, deposition, and hearing 25 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 26 reports, attorney work product, and consultant and expert work product, even if such 27 materials contain protected material. Any such archival copies that contain or 28 1 || constitute protected material remain subject to this Protective Order. 2 Application of this Order to Productions by Third Parties 3 24. This Order may be used by third parties producing documents in 4 || connection with this action. Third parties may designate information as Confidential 5 || or Highly Confidential — Attorneys’ Eyes Only. 6 25. third party produces (or intends to produce) documents and does not 7 || designate (or does not intend to designate) those documents as Confidential Material, 8 || then any party to this action may seek to designate that third party’s documents or 9 || categories of documents as Confidential Material. In that case, it will be the burden 10 || of the party seeking protected status to move for a court order designating the 11 |) materials as Confidential Material after the parties confer. 12 26. In the event additional parties join or intervene in this litigation, the 13 || newly joined party(ies) shall not have access to Confidential Material until its/their 14 || counsel has executed and, at the request of any party, filed with the Court the 15 || agreement of such party(ies) and such counsel to be fully bound by this Order. 16 27. The parties agree that nothing in this Order shall be deemed to limit the 17 || extent to which counsel for the parties may advise or represent their respective clients, 18 || conduct discovery, prepare for trial, present proof at trial, including any document 19 || designated Confidential Material as set forth herein, or oppose the production or 20 || admissibility of any information or documents which have been requested. 21 28. This Order shall remain in full force and effect until such time as it is 22 || modified, amended, or rescinded by the Court. 23 IT IS SO ORDERED. 24 . 55 || Dated: April 19, 2023 huh fe 26 BON PERN TE hoe 28 1] Case No. 2:22-cv-0838( PROTECTIVE ORDER GOVERNING THE DESIGNATION ANT) HANDIING OF

1 EXHIBIT A 2

3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5 JINHUI KIM, individually and on Case No. 2:22-cv-08380-SB-PVC

6 behalf of all others similarly situated, DISCOVERY MATTER 7 Plaintiff, 8 PROTECTIVE ORDER GOVERNING v. THE DESIGNATION AND HANDLING 9 OF CONFIDENTIAL MATERIALS 10 WALMART INC., District Judge: Stanley Blumenfeld Jr. 11 Defendant. Courtroom: 6C Complaint Filed: October 6, 2020 12 FAC Filed: December 15. 2022 SAC Filed: March 30, 2023 13 Trial Date: March 25, 2024

14 15 NON-DISCLOSURE AGREEMENT 16 I, the undersigned, hereby declare that I have read the Stipulated Order 17 Governing the Designation and Handling of Confidential Materials entered in the 18 above-captioned Action. I understand the terms of, will comply with, and agree to be 19 bound by all of the provisions of the Stipulated Order Governing the Designation and 20 Handling of Confidential Materials. I further agree that I will not use any information 21 received pursuant to the Stipulated Order Governing the Designation and Handling of 22 Confidential Materials to directly compete in any manner with Walmart, Inc. or 23 disclose Confidential Materials to any current or former consultants, advisors, agents 24 of, a direct competitor of Walmart, Inc. 25 DATED: __________________ ______________________________ 26 Signature _______________________________ 27 Print Name 28