Masters v. Sam's West, Inc

Opinion

1 Z. KATHRYN BRANSON, ESQ. Nevada Bar #11540 2 LITTLER MENDELSON, P.C. 3960 Howard Hughes Parkway 3 Suite 300 Las Vegas, Nevada 89169.5937 4 Telephone: 702.862.8800 Fax No.: 702.862.8811 5 Email: kbranson@littler.com 6 Attorneys for Defendant SAM’S WEST, INC. 7

8 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 9

10 LISA MASTERS, 11 Case No. 2-24-cv-01959-RFB-MDC Plaintiff, 12 STIPULATED CONFIDENTIALITY v. ORDER 13 SAM’S WEST, INC. d/b/a SAM’S CLUB, a 14 Domestic Limited-Liability Company; LARRY BIRD, an individual; ROB “DOE”, an 15 individual; DOES 1-25, inclusive; and ROE CORPORATIONS 1-25, inclusive, 16 Defendants. 17

18 The parties have agreed to and have submitted to the Court, and for good cause shown the 19 20 Court hereby enters, the following Confidentiality Order, re-submitted in accordance with ECF 21 No. 23: 22 1. This Order shall govern the disclosure of materials designated as Confidential 23 Material in this litigation. Confidential Material, as used in this Order, shall refer to any document 24 or item designated as Confidential or Highly Confidential – Attorneys’ Eyes Only, including but 25 not limited to, documents or items produced during discovery, all copies thereof, and the 26 27 information contained in such material. Nothing in this Order shall require any party to produce 28 1 any specific documents or category of documents which a party deems inappropriate for 2 production. 3 Definitions of Confidential Material 4 2. Confidential Material, as used in this Order, consists of the following materials and 5 categories of materials: 6 7 a. Materials relating to any privileged, confidential, or nonpublic information, including, but not limited to, trade secrets, research, 8 design, development, financial, technical, marketing, planning, personal, or commercial information, as such terms are used in the 9 Federal Rules of Civil Procedure and any applicable case law; contracts; non-public compilations of retail prices; proprietary 10 information; vendor agreements; personnel files; claim/litigation 11 information; and nonpublic policies and procedures shall be deemed Confidential. 12 b. Materials containing corporate trade secrets, nonpublic research 13 and development data, including, but not limited to, cost data, pricing formulas, inventory management programs, and other sales or 14 business information not known to the public; information obtained 15 from a non-party pursuant to a non-disclosure agreement; and customer-related Protected Data shall be deemed Highly 16 Confidential – Attorneys’ Eyes Only.

17 c. Protected Data shall refer to any information that a party believes in good faith to be subject to federal, state or foreign data protection 18 laws or other privacy obligations. Examples of such data protection 19 laws include but are not limited to The Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. (financial information); and, The Health 20 Insurance Portability and Accountability Act and the regulations thereunder, 45 CFR Part 160 and Subparts A and E of Part 164 21 (medical information). Certain Protected Data may compel alternative or additional protections beyond those afforded Highly 22 Confidential – Attorneys’ Eyes Only material, in which event the 23 parties shall meet and confer in good faith, and, if unsuccessful, shall move the Court for appropriate relief. 24 The parties shall not designate as confidential information that is already public knowledge. 25 3. The parties agree that such Confidential Material as described in paragraph 2 should 26 27 be given the protection of an order of this Court to prevent injury through disclosure to persons 28 other than those persons involved in the prosecution or defense of this litigation. 1 Procedure for Designating Information as Confidential 2 4. To designate information as confidential, the producing party shall mark 3 Confidential Material with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 4 ATTORNEYS’ EYES ONLY.” Parties shall submit confidential discovery responses, such as 5 answers to interrogatories or answers to requests for admissions, in a separate document stamped 6 7 with the appropriate legend designating those responses as Confidential Material. The Receiving 8 Party may make copies of Confidential Material and such copies shall become subject to the same 9 protections as the Confidential Material from which those copies were made. 10 a. Information on a disk or other electronic format (e.g., a native 11 format production) may be designated confidential by marking the storage medium itself (or the native file’s title) with the legend 12 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The Receiving Party shall mark any 13 hard-copy printouts and the storage medium of any permissible copies of such electronic material with the corresponding legend 14 contained on the original and such copies shall become subject to the 15 same protections, as the Confidential Material from which those copies were made. 16 b. Information disclosed at any deposition of a party taken in this 17 action may be designated by the party as confidential by indicating on the record at the deposition that the information is confidential 18 and subject to the provisions of this Order. Alternatively, the party 19 may designate information disclosed at the deposition as confidential by notifying the court reporter and other parties in writing, within 20 fifteen (15) business days of receipt of the transcript, of the specific pages and lines of the transcript which are designated as confidential. 21 The parties may agree to a reasonable extension of the 15-business- day period for designation. Designations of transcripts will apply to 22 audio, video, or other recordings of the testimony. During such 15- 23 business-day period, the entire transcript shall receive confidential treatment. Upon such designation, the court reporter and each party 24 shall affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” legend to the designated pages and 25 segregate them as appropriate. 26 5. A producing party may change the confidentiality designation of materials it has 27 produced, as follows: (1) The producing party must give the receiving parties notice of the change 28 1 by identifying the documents or information at issue. Once notice is given, the receiving party 2 must make good-faith efforts to ensure that the documents or information are accorded treatment 3 under the new designation. (2) Within a reasonable period after giving notice, the producing party 4 must reproduce the documents or information in a format that contains the new designation. (3) If 5 such information has been disclosed to persons not qualified pursuant to paragraph(s) 12-13 below, 6 7 the party who disclosed such information shall (a) take reasonable efforts to retrieve previously 8 disclosed Confidential Material; (b) advise such persons that the material is Confidential; and (c) 9 give the producing party written assurance that steps (a) and (b) have been completed. 10 Data Security 11 6. The Parties agree to provide adequate security to protect data produced by the other 12 party(ies) or by non-parties. This includes secure data storage systems, established security policies, 13 and security training for employees, contractors and experts. Adequate security also includes such 14 15 measures as data encryption in transit, data encryption at rest, data access controls, and physical 16 security, whether hosted/outsourced to a vendor or on premises. At a minimum, any receiving party 17 subject to the terms of this Confidentiality Order, will provide reasonable measures to protect non- 18 client data consistent with the American Bar Association Standing Committee on Ethics and 19 Professional Responsibility, Formal Opinion 477R. 20 Clawback Provisions 21 7. The production of privileged or work-product protected documents, electronically 22 23 stored information (ESI) or information, whether inadvertent or otherwise, is not a waiver of the 24 privilege or protection from discovery in this case or in any other federal or state proceeding. 25 8. This Order shall be interpreted to provide the maximum protection allowed by the 26 Federal Rules of Evidence and shall be enforceable and granted full faith and credit in all other 27 28 1 state and federal proceedings by 28 U.S. Code § 1738. In the event of any subsequent conflict of 2 law, the law that is most protective of privilege and work product shall apply. 3 9. Nothing contained herein is intended to or shall serve to limit a party’s right to 4 conduct a review of documents, ESI or information (including metadata) for relevance, 5 responsiveness and/or segregation of privileged and/or protected information before production. 6 7 10. If the receiving party has reason to believe that a produced document or other 8 information may reasonably be subject to a claim of privilege, then the receiving party shall 9 immediately sequester the document or information, cease using the document or information and 10 cease using any work product containing the information, and shall inform the producing party of 11 the beginning BATES number of the document or, if no BATES number is available, shall 12 otherwise inform the producing party of the information. 13 11. A producing party must give written notice to any receiving party asserting a claim 14 15 of privilege, work-product protection, or other ground for reclaiming documents or information (a 16 “clawback request”). After a clawback request is received, the receiving party shall immediately 17 sequester the document (if not already sequestered) and shall not review or use that document, or 18 any work product containing information taken from that document, for any purpose. The parties 19 shall meet and confer regarding any clawback request. 20 Who May Receive Confidential and Highly Confidential Information 21 12. Confidential Material. Any Confidential Material and the information contained 22 23 therein shall be disclosed only to the Court, its staff, in-house counsel and outside counsel of record 24 for each party, and also shall be disclosed on a need-to-know basis only to the parties, counsel’s 25 staff personnel, employees of a party to whom disclosure is necessary in connection with the 26 preparation for and trial of this action, and any witnesses in the case (including consulting and 27 28 1 testifying experts) as may from time to time reasonably be necessary in prosecution or defense of 2 this action. 3 13. Highly Confidential—Attorneys’ Eyes Only Material. Material and information 4 designated as “Highly Confidential—Attorneys’ Eyes Only” shall only be disclosed to the Court, 5 its staff, in-house and outside counsel of record for each party, the secretarial, clerical, and paralegal 6 7 staff of each, and consulting and testifying experts retained by a party in this action. 8 14. Restriction on Disclosure to Direct Competitors. Notwithstanding the foregoing, 9 Confidential Material shall not be disclosed to any current or former employees of, or current or 10 former consultants, advisors, or agents of, a direct competitor of any party named in the litigation. 11 If a Receiving Party is in doubt about whether a particular entity is a direct competitor of a party 12 named in this lawsuit, then before disclosing any Confidential Material to a current or former 13 employee, consultant, advisor, or agent of that entity, the Receiving Party’s counsel must confer 14 15 with counsel for the Producing Party. 16 15. Persons Receiving Confidential Information Must Sign Exhibit A. Counsel for each 17 party shall advise all persons to whom Confidential Material is disclosed pursuant to this Order of 18 the existence of this Order and shall provide all such persons (other than the Court and its staff) 19 with a copy of this Order. Counsel shall also require such persons to execute the Affidavit attached 20 as Exhibit A, prior to the disclosure of Confidential Material. 21 16. Duties in the Event of Unauthorized Disclosures. It shall be the obligation of 22 23 counsel, upon learning of any unauthorized disclosure or threatened unauthorized disclosure of 24 Confidential Information, or any other breach or threatened breach of the provisions of this Order, 25 to promptly notify counsel for the Producing Party. The notification shall be supplemented with 26 reasonable details of the circumstances of the disclosure in order to permit the producing party to 27 understand and take appropriate steps. Each party and its counsel agree to take reasonable and 28 1 good-faith efforts to contain or limit any breach promptly upon receiving notice of it, and to make 2 reasonable and good-faith attempts to retrieve any unauthorized disclosure of documents or 3 information. This provision does not limit the producing party’s entitlement to damages resulting 4 from any breach of this Order. 5 Authorized Uses of Confidential Material 6 7 17. Confidential Material shall only be used for the purpose of litigating the above- 8 captioned lawsuit and may not be used in other lawsuits. 9 18. Persons having knowledge of Confidential Material and information due to their 10 participation in the conduct of this litigation shall use such knowledge and information only as 11 permitted herein, and shall not disclose such Confidential Material, their contents or any portion or 12 summary thereof to any person(s) not involved in the conduct of this litigation. 13 19. If any person having access to the Confidential Material herein shall violate this 14 15 Order, he/she may be subject to sanctions by the Court and may be liable to pay for the damages 16 caused by his/her violation. 17 Challenges to the Designation of Confidential Material 18 20. Any party or interested member of the public may move the Court to modify the 19 designation of any documents or information produced in this litigation (either to include additional 20 protection with respect to confidentiality or to remove a confidential designation). Before making 21 such a motion, the party or an interested member of the public shall first attempt to resolve such 22 23 dispute with the producing party’s counsel. Pending resolution of any challenges to the designation 24 of documents or information, the material at issue shall continue to be treated as Confidential 25 Material until ordered otherwise by the Court. The burden shall be on the party seeking to modify 26 the designation to show that the producing party’s designation is inappropriate. 27 / / / 28 1 Withholding of Information 2 21. Non-relevant Attachments. The parties will not produce non-relevant attachments 3 that are attached to relevant emails. When an attachment is withheld, either for privilege or non- 4 responsiveness, the producing party shall produce a one-page TIFF image (or PDF if production 5 format dictates) in place of the withheld attachment, correspondingly stating “Attachment 6 7 Withheld-Privileged” or “Attachment Withheld-Nonresponsive”, and bearing a sequential BATES 8 number within the family BATES range. If any attachment to an email contains responsive content, 9 then the cover email shall be produced for context, regardless of the cover email’s responsiveness. 10 The cover email may be redacted in part to remove sensitive information, as described below. 11 22. Redactions. The parties may redact (1) information that is privileged or protected 12 from discovery as work product or by reason of any other applicable privilege or immunity; (2) 13 information subject to non-disclosure obligations imposed by governmental authorities, law or 14 15 regulation (e.g., protected personal information); and (3) sensitive, non-relevant information, 16 including but not limited to personally identifiable information, trade secrets, or information 17 regarding products, data, or people. Privilege redactions will state, over the redacted portion, 18 “Redacted–Privileged,” and all other redactions will state, “Redacted–Nonresponsive.” Redactions 19 of emails will not redact the names of recipients or the subject line of the emails, unless the subject 20 line is itself privileged or contains the sensitive information described above, in which case only so 21 much of the subject line will be redacted as may be needed. The parties will produce redacted 22 23 documents in TIFF format (or searchable PDF if production format dictates; or in native format for 24 file types that do not convert well to TIFF/PDF, such as Excel files) with corresponding searchable 25 OCR text and the associated metadata for the document, ensuring the redacted content is fully 26 protected from disclosure. 27 / / / 28 1 Confidential Material In Filings, Hearings, and Trial 2 23. Confidential Material in Filings. Without written permission from the Producing 3 Party or court order secured after appropriate notice to all interested persons, a party may not file 4 Confidential Material in the public record in this action (or in any other action, such as an appeal). 5 A party that seeks to redact or file under seal any Confidential Material must comply with LR IA 6 7 10-5, FRCP 5.2, and the requirements of Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172 8 (9th Cir. 2006) and its progeny. Confidential Material may only be filed under seal in a manner 9 prescribed by the Court for such filings. 10 24. Manner of Sealing. In the event Confidential Materials or portions of transcripts are 11 sealed as confidential by the Court or as described in paragraph 23 above, they shall be filed in an 12 envelope bearing the following designation when deposited: 13 CONFIDENTIAL 14

15 IN ACCORDANCE WITH THE CONFIDENTIALITY ORDER OF THE COURT, THE CONTENTS OF THIS ENVELOPE SHALL 16 BE TREATED AS CONFIDENTIAL AND MUST NOT BE SHOWN TO A PERSON OTHER THAN THE COURT, 17 ATTORNEYS IN THIS CASE, OR TO PERSONS ASSISTING THOSE ATTORNEYS. 18

19 25. Confidential Material in Hearings and Trial. The provisions of this Order shall not 20 affect, and this Order does not limit, the admissibility of Confidential Material (or references to that 21 material) as evidence at trial, or during a hearing or similar proceeding in this action. Prior to using 22 Confidential Material or the information contained therein at any hearing that is open to the public, 23 the party seeking to use the Confidential Material must give at least seven (7) days advance notice 24 25 to the producing party of the intent to use the Confidential Material so that the producing party may 26 seek an appropriate Court Order to protect the Confidential Material. 27 / / / 28 1 Continuing Effect of this Order and Duty to Destroy 2 26. This Order shall continue to be binding throughout and after the conclusion of this 3 litigation, including all appeals. Within thirty (30) days of settlement or final adjudication, 4 including the expiration or exhaustion of all rights to appeal or petitions for extraordinary writs, 5 each party or non-party to whom any materials were produced shall, without further request or 6 7 direction from the Producing Party, promptly destroy all documents, items or data received 8 including, but not limited to, copies or summaries thereof, in the possession or control of any expert 9 or employee. This requirement to destroy includes all documents, not only those documents 10 designated as Confidential Material. The Receiving Party shall submit a written certification to the 11 Producing Party by the 30-day deadline that (1) confirms the destruction/deletion of all Confidential 12 Material, including any copies of Confidential Materials provided to persons required to execute 13 Exhibit A (Affidavit), and (2) affirms the Receiving Party has not retained any copies, abstracts, 14 15 compilations, summaries or any other format reproducing or capturing any of the Confidential 16 Material. Notwithstanding this provision, outside counsel is entitled to retain an archival copy of 17 filings, depositions, and deposition exhibits. 18 Procedure if Confidential Material Is Required to be Produced 19 27. If any person receiving documents covered by this Order is served with a subpoena, 20 order, interrogatory, or document or civil investigative demand (collectively, a “Demand”) issued 21 in any other action, investigation, or proceeding, and such Demand seeks material that was 22 23 produced or designated as Confidential Material by someone other than the Receiving Party, the 24 Receiving Party shall give prompt written notice by hand or electronic transmission within five (5) 25 business days of receipt of such Demand to the party or non-party who produced or designated the 26 material as Confidential Material, and shall object to the production of such materials on the 27 grounds of the existence of this Order. At the request of the party or non-party who produced or 28 1 designated the material as Confidential Material, the Receiving Party shall refuse to comply with 2 the Demand unless (a) ordered to do so by a court with jurisdiction over the Receiving Party; or (b) 3 released in writing by the party or non-party who designated the material as Confidential Material. 4 The burden of opposing the enforcement of the Demand shall fall upon the party or non-party who 5 produced or designated the material as Confidential Material. Compliance by the Receiving Party 6 7 with any order of a court of competent jurisdiction, directing production of any Confidential 8 Material, shall not constitute a violation of this Order. 9 Application of this Order to Productions by Third Parties 10 28. This Order may be used by third parties producing documents in connection with 11 this action. Third parties may designate information as Confidential or Highly Confidential – 12 Attorneys’ Eyes Only. 13 29. If a third party produces (or intends to produce) documents and does not designate 14 15 (or does not intend to designate) those documents as Confidential Material, then any party to this 16 action may seek to designate that third party’s documents or categories of documents as 17 Confidential Material. In that case, it will be the burden of the party seeking protected status to 18 move for a court order designating the materials as Confidential Material after the parties confer. 19 30. In the event additional parties join or intervene in this litigation, the newly joined 20 party(ies) shall not have access to Confidential Material until its/their counsel has executed and, at 21 the request of any party, filed with the Court the agreement of such party(ies) and such counsel to 22 23 be fully bound by this Order. 24 31. The parties agree that nothing in this Order shall be deemed to limit the extent to 25 which counsel for the parties may advise or represent their respective clients, conduct discovery, 26 prepare for trial, present proof at trial, including any document designated Confidential Material as 27 28 1 || set forth herein, or oppose the production or admissibility of any information or documents which 2 | have been requested. 3 4 32. This Order shall remain in full force and effect until such time as it is modified, 5 amended, or rescinded by the Court. 6 7 Dated: January 28, 2025 Dated: January 28, 2025 Respectfully submitted, Respectfully submitted, 9 far Geneon? /s/ Christian Z. Smith 10 | PATRICK W. KANG, ESQ. Z. KATHRYN BRANSON, ESQ. u KYLE R. TATUM, ESQ. LITTLER MENDELSON, P.C. CHRISTIAN Z. SMITH, ESQ. 12 KANG & ASSOCIATES, PLLC Attorneys for Defendant SAM’S WEST, INC. 13 Attorneys for Plaintiff LISA MASTERS 14 15 16 ORDER 17 The manner for sealing confidential materials approved to be sealed by the Court 18 shall be governed by LR IA 10-5. 19 20 2] IT ISSO ORDERED. A ff 22 fo fa re 23 ie F _ ff Y 24 Ho aximiliay> ouvillier IIT UNITED STATE NGISTRATE JUDGE 25 Date: 1/ 07" 26 27 28 P.C. Hughes Parkway 1 2

EXHIBIT "A" CONFIDENTIALITY AGREEMENT I, _______________________________ do hereby acknowledge and agree as follows: 1. I have received and read the Stipulated Confidentiality Order entered in the matter entitled Lisa Masters v. Sam’s West, Inc. d/b/a Sam’s Club, et al., Case No. 2:24-cv-01959-RFB- MDC, pending before the United States District Court, District of Nevada, of which the form of this Confidentiality Agreement (“Agreement”) is an attachment. 2. I understand the terms and provisions of the Confidentiality Order and agree to be bound by and to strictly adhere to all of its terms and provisions. 3. I hereby submit to the jurisdiction of the United States District Court, District of Nevada, solely for the purpose of enforcement of the Confidentiality Order. Dated the ____ day of _________________ 2025.

____________________________________ [Signature] ____________________________________ ____________________________________ ____________________________________ [Printed Name, Address, Telephone]